GIFT  OF 

J.A.C.    Grant 


1^  ^\^y\    p   Sau-nicr 


s. 


INTERNATIONAL   LAW 


BY 


GEORGE  GRAFTON  WILSON,  Ph.D. 

PROFESSOR   IN   BROWN   UNIVERSITY 
AND 

GEORGE  FOX  TUCKER,  Ph.D. 

LATELY  REPORTER  OP  DECISIONS  OF  THE  SUPREME  JUDICIAL 
COURT  OF  MASSACHUSETTS 


FIFTH  EDITION 


SILVER,  BURDETT  AND   COMPANY 
NEW  YORK  BOSTON  CHICAGO 


Copyright,  1910,  by 
SILVER,  BURDETT  AND  COMPANY 


^.       ■»       -^ 


.V. :- •■;  •  ■-•.  ••  ■ 


«         *         •  .  *  1 


i5  T, 


^<f4 


^i         PREFACE  TO  THE  FIFTH  EDITION 

3  The  authors  have  in  this  new  edition  introduced  changes 
made  necessary  by  the  development  of  international  relations. 
The  wars  of  recent  years  and  the  results  of  the  Conferences 

-  at  The  Hague  and  of  other  international  conferences  have 

-  greatly  modified  international  law  as  understood  toward  the 
^  end  of  the  nineteenth  century.  Principles  then  commonly 
^  recognized  are  now  formulated  in  international  agreements, 
Q  and  new  principles  have  been  brought  forward  and  have 

received  general  assent.  It  may  not  be  too  much  to  say  that 
J  the  development  of  international  law  within  the  period  since 
f  the  call  for  the  First  Peace  Conference  at  The  Hague  in  1898 
J  has  been  greater  than  that  during  the  two  hundred  and  fifty 
)  years  preceding,  from  the  Peace  of  Westphalia  in  1648  to 
.  the  call  for  the  Hague  Conference  in  1898.  These  significant 
)  changes  have  been  regarded  in  this  edition  and  have  made 
;^  necessary  an  entire  rewriting  of  many  sections  of  the  book. 
^  Certain  rules,  codes,  and  conventions  printed  in  the  appen- 
dices of  earlier  editions  have  become  in  large  measure  obso- 
^  lete  and  have  been  omitted.  Many  of  the  recent  international 
0  agreements  appear  in  the  appendices.  In  certain  cases  where 
such  agreements  relate  to  a  single  subject  the  essential  articles 
^  appear  in  the  appropriate  section  of  the  text,  and  may  be 
II  found  by  reference  to  the  index. 

The  authors  would  again  express  their  appreciation  of  the 
reception  which  the  earlier  editions  have  received. 

G.  G.  W. 

G.  F.  T. 

December,  1909. 


m 


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PREFACE   TO  THE  FIRST  EDITION 

The  authors  have  freely  used  the  substantive  material  as 
found  in  cases,  codes,  etc.,  which  involve  the  principles  of 
international  law.  Owing  to  the  increasing  importance  of 
international  negotiation,  relatively  more  attention  than  usual 
has  been  given  to  matters  connected  with  diplomacy.  The 
appendices  contain  material  which  the  authors  have  found 
advantageous  to  have  easily  accessible  to  each  student.  The 
study  of  this  book  should  in  all  cases  be  supplemented  by 
reference  to  a  considerable  number  of  the  books  mentioned 
in  the  bibliography. 

G.  G.  W. 

G.  F.  T. 
September,  1901. 


IV 


CONTENTS 


PAQB 

BIBLIOGRAPHY xv 

ABBREVIATIONS  OF  CASES  CITED xvii 

TABLE   OF   CASES    CITED  xix 

PART    I 

GENERAL  AND  HISTORICAL 

CHAPTER  I 
DEFINITION  AND   GENERAL  SCOPE      ......         3 

1.  Subject-matter  of  International  Law. 

2.  Divisions. 

3.  Scope. 

CHAPTER  II 
NATURE  OF  INTERNATIONAL  LAW       ...  ...         7 

4.  Early  Terahnology. 

5.  Historical  Bases. 

6.  Ethical  Bases. 

7.  Jural  Bases. 

8.  International  Law  and  Statute  Law. 

9.  International  Law  and  Law  in  General. 

CHAPTER  III 
HISTORICAL    DEVELOPMENT 13 

10.  Early  Period. 

11.  Middle  Period. 

12.  Modern  Period  from  164S. 

13.  Influence  op  the  United  States. 

14.  Writers. 

CHAPTER  IV 
SOURCES  OF  INTERNATIONAL  LAW 37 

15.  Practice  and  Usage. 

16.  Precedent  and  Decisions. 

-  17.  Treaties  and  State  Papers. 

18.  Text  Writers. 

19.  Diplomatic  Papers. 

V 


Vi  CONTENTS 

PART  II 
PERSONS  IN  INTERNATIONAL  LAW 

CHAPTER  V 
STATES 45 

20.  Definition  of  a  State. 

21.  Conditions  of  State  Existence. 

22.  Recognition  op  New  States. 

CHAPTER  VI 

LEGAL  PERSONS  HAVING  QUALIFIED  STATUS       ....       67 

23.  Members  of  Confederations  and  Other  Unions. 

24.  Neutralized  States. 

25.  Protectorates  and  Suzerainties. 

26.  Corporations. 

27.  Individuals. 

28.  Insurgents. 

29.  Belligerents. 

30.  Communities  not  Fully  Civilized, 


PART  III 
INTERNATIONAL  LAW  OF  PEACE 

CHAPTER  VII 

GENERAL  RIGHTS  AND  OBLIGATIONS  OF  STATES  .       .      .       73 

31.  Existence. 

32.  Independence. 

33.  Equality. 

34.  Jurisdiction. 

35.  Property. 

36.  Intercourse. 

CHAPTER  VIII 
EXISTENCE 77 

37.  Application  of  the  Right. 

38.  Extension  of  the  Right  to  Subjects  of  the  State. 


CONTENTS  VU 


CHAPTER  IX 

PAOB 

INDEPENDENCE 81 

39.  Manner  of  Exercise  of  the  Right. 

40.  European  Balance  of  Power. 

41.  Monroe  Doctrine  and  American  Policies. 

42.  Non-intervention. 

43.  Practice  in  Regard  to  Intervention. 


CHAPTER  X 

EQUALITY 97 

44.  Equality  of  States  Extends  only  to  Legal  Status. 

45.  Inequalities  among  States. 


CHAPTER  XI 

JURISDICTION 107 

46.  Jurisdiction  in  General. 

47.  Territorial  Domain  and  Jurisdiction, 

48.  Method  of  Acquisition  of  Territorial  Jurisdiction. 

49.  Qualified  Territorial  Jurisdiction. 

50.  Maritime  and  Fluvial  Jurisdiction. 

51.  Jurisdiction  of  Rivers. 

52.  The  Navigation  of  Rivers. 

53.  Jurisdiction  of  Enclosed  Waters. 

54.  The  Three-mile  Limit. 

55.  Jurisdiction  over  Fisheries. 

56.  Jurisdiction  over  Vessels. 

57.  Aerial  Jurisdiction. 

58.  Jurisdiction  over  Persons  and  the  Question  or  Na- 

tionality. 

59.  Jurisdiction  over  Natural-born  Subjects. 

60.  Jurisdiction  over  Foreign-born  Subjects. 

61.  Jurisdiction  by  Virtue  of  Acquired  Nationautt. 

62.  Jurisdiction  over  Aliens. 

63.  General  Exemptions  from  Local  Jurisdiction. 

64.  Exemption  of  Sovereigns  from  Local  Jurisdiction. 

65.  Exemptions  of  State  Officers. 

66.  Special  Exemptions. 

67.  Extradition. 

68.  Servitudes. 


X  CONTENTS 

CHAPTER  XXI 
TERMINATION  OF  WAR 281 

lis.  Methods  of  Termination  of  Wab. 

119.  TER^^NATION  OP  War  by  Conquest. 

120.  Termination  of  War  by  Cessation  of  Hostilities. 

121.  Termination  of  War  by  a  Treaty  op  Peace. 


PART  V 
INTERNATIONAL  LAW  OF  NEUTRALITY 

CHAPTER  XXII 
DEFINITION  AND  HISTORY  OF  NEUTRALITY 287 

122.  Definition  of  Neutrality. 

123.  Forms  of  Neutrality  and  of  Neutralization. 

124.  History  of  Neutrality. 

125.  Declaration  of  Neutrality. 

126.  Two  Classes   of   Relations  between   Neutrals  and 

Belligerents. 

CHAPTER  XXIII 
RELATIONS  OF  NEUTRAL  STATES  AND  BELLIGERENT  STATES     295 

127.  General  Principles  of  the  Relations  between  States. 

128.  Neutral  Territorial  Jurisdiction. 

129.  Regulation  of  Neutral  Relations. 

130.  No  Direct  Assistance  by  the  Neutral  Allowed. 

131.  Positive  Obligations  of  a  Neutral  State. 

CHAPTER  XXIV 
NEUTRAL  RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS   ."  311 

132.  Ordinary  Commerce  in  Time  of  War. 

133.  Contraband. 

134.  Penalty  for  Carrying  Contraband. 

135.  Unneutral  Service. 

136.  Visit,  Search,  and  Seizure. 

137.  Convoy. 

138.  Blockade. 

139.  Violation  of  Blockade. 

140.  Continuous  Voyages. 

141.  Prize  and  Prize  Courts. 


CONTENTS 


XI 


APPENDIX  I 


PAGE 


INSTRUCTIONS  FOR  THE  GOVERNMENT  OF  ARMIES  OP  THE 

UNITED  STATES  IN  THE  FIELD 349 


Section 


I. 


Section       II. 


Section     III. 


Section      IV. 


Section 


Section      VI. 


Section  VII. 
Section  VIII. 
Section  IX. 
Section       X. 


Martial  Law — Military  Jurisdiction — Mil- 
itary Necessity — Retaliation. 

Public  and  Private  Property  of  the 
Enemy — Protection  of  Persons,  and 
Especially  of  Women;  of  Religion, 
THE  Arts  and  Sciences — Punishment 
OP  Crimes  against  the  Inhabitants  of 
Hostile  Countries. 

Deserters — Prisoners  of  War — Hostages 
— Booty  on  the  Battlefield. 

Partisans — Armed  Enemies  not  Belonging 
TO  the  Hostile  Army — Scouts — Armed 
Prowlers — War-rebels. 

Safe-conduct — Spies — War-traitors — Cap- 
tured Messengers. 

Exchange  of  Prisoners — Flags  op  Truce — 
Abuse  of  the  Flag  of  Truce — Flags  of 
Protection. 

The  Parole. 

Armistice — Capitulation. 

Assassination. 

Insurrection — Civil  War — Rebellion. 


APPENDIX  II 
DECLARATION  OF  PARIS 379 


APPENDIX  III 

CONVENTION  FOR  THE  AMELIORATION  OF  THE  CONDITION 
OF  THE  WOUNDED  IN  ARMIES  IN  THE  FIELD.  GENEVA, 
JULY  6,  1906 

The  Sick  and  Wounded. 
Sanitary  Formations  and  Establishments. 
Personnel. 
Materiel. 

Convoys  of  Evacuation. 
Distinctive  Emblem. 

Application  and  Execution  op  the  Con- 
vention. 
Repression  op  Abuses  and  Infractions. 


381 


Chapter 

I. 

Chapter 

11. 

Chapter 

III. 

Chapter 

IV. 

Chapter 

V. 

Chapter 

VI. 

Chapter 

VII. 

Chapter  VIII. 

xii  CONTENTS 


APPENDIX  IV 


PAGE 


CONVENTION   FOR   THE    PACIFIC    SETTLEMENT   OF   INTERNA- 
TIONAL  DISPUTES 389 

Title      I.  On  the  Maintenajstce  of  the  General  Peace. 

Title     II.  On  Good  Offices  and  Mediation. 

Title  III.  On  International  Commissions  of  Inquiry. 

Title   IV.  On  International  Arbitration. 

APPENDIX  V 

CONVENTION  WITH  RESPECT  TO  THE  LAWS  AND  CUSTOMS  OF 

WAR   ON   LAND 408 

ANNEX    TO     THE     CONVENTION— REGULATIONS    RESPECTING 

THE   LAWS   AND   CUSTOMS   OF   WAR   ON   LAND       .  .411 

Section      I.     Belligerents. 

Section     II.     Hostilities. 

Section  III.     Military  Authority  over  Hostile  Territory. 

APPENDIX  VI 

CONVENTION  RESPECTING  THE  RIGHTS  AND  DUTIES  OF  NEU- 
TRAL POWERS  AND  PERSONS  IN  CASE  OF  WAR  ON  LAND   .      420 

Chapter      I.     The  Rights  and  Duties  of  Neutral  Powers. 
Chapter    II.     Internment  of  Belligerents  a       Care  of 

Wounded  in  Neutral  Territory. 
Chapter  III.     Neutral  Persons. 
Chapter  IV.     Railway  Material. 
Chapter     V.     Final  Provisions. 

APPENDIX  VII 

CONVENTION    RELATIVE    TO    THE    STATUS    OF    ENEMY    MER- 
CHANT-SHIPS AT  THE  OUTBREAK  OF  HOSTILITIES      .        .     424 

APPENDIX  VIII 

CONVENTION  FOR  THE  ADAPTATION  TO  NAVAL  WAR  OF  THE 

PRINCIPLES  OF  THE  GENEVA  CONVENTION      .        .  .426 

APPENDIX  IX 

CONVENTION  WITH  REGARD  TO  THE  EXERCISE  OF  THE  RIGHT 

OF  CAPTURE  IN  NAVAL  WAR 431 

Chapter      I.     Postal  Correspondence. 

Chapter    II.     The  Exemption   from  Capture  of  Certain 

Vessels, 


CONTENTS  xiii 

Chapter  III.  Regulations  Regarding  the  Crews  of 
Enemy  Merchant-ships  Captured  by  a 
Belligerent. 

Chapter  IV.    Final  Provisions. 

APPENDIX  X 

PAGE 

CONVENTION  RELATIVE  TO  THE  CREATION  OP  AN  INTERNA- 
TIONAL   PRIZE    COURT 434 

Part      I.     General  Provisions. 

Part    II.    Constitution     of     the     International     Prize 

Court. 
Part  III.     Procedure  in  the  International  Prize  Goukt. 
Part  IV.     Final  Provisions. 


APPENDIX  XI 
CONVENTION  CONCERNING  THE  RIGHTS  AND  DUTIES  OP  NEU- 


&xv.a.u    f  w 

APPENDIX  XII 

LARATIO] 

6J  OF 

LONDON      

Chapter 

I. 

Blockade  in  Time  of  War. 

Chapter 

II. 

Contraband  of  War. 

Chapter 

III. 

Unneutral  Service. 

Chapter 

IV. 

Destruction  of  Neutral  Prizes. 

Chapter 

V. 

Transfer  of  Flag. 

Chapter 

VI. 

Enemy  Character. 

Chapter 

VII. 

Convoy. 

Chapter  VIII. 

Resistance  to  Search. 

Chapter 

IX. 

Compensation, 

460 


APPENDIX  XIII 
UNITED  STATES  NEUTRALITY  LAWS 465 

APPENDIX  XIV 
PROCEDURE  IN  PRIZE  COURT 469 

APPENDIX  XV 
DIGEST  OP  IMPORTANT  OASES  ARRANGED  UNDER  TITLES   .     476 

INDEX 491 


BIBLIOGRAPHY 

This  brief  list  contains  the  titles  of  books  of  reference  and  of  those  most 
frequently  cited  in  the  following  pages: 

Ariga,  N.     La  Guerre  Sino-Japonaise  au  point  de  vue  du  droit  inter- 
national, 1896. 

La  Guerre  Russo-Japonaise.     1908. 

Bluntschli,  J.  C.     Le  Droit  International.     (Lardy  and  Rivier),  1895. 

BoNFiLs.     Droit  International  Public.     (Fauchille),  1905. 

Butler,  C.  H.     Treaty-making  Power  of  the  United  States.     2  vols.  1902. 

Calvo,  Ch.     Droit  International.     5th  ed.     6  vols.     1896. 

CoBBETT,  Pitt.     Leading  Cases  and  Opinions  on  International  Law.  2d 

ed.     1892. 
Dahlgren,  J.  A.     Maritime  International  Law.     1877. 
Davis,  G.  B.     The  Elements  of  International  Law.     1908. 
Despagnet.     Droit  International  Public.     3d  ed.     1905. 
Field,  D.  D.     OutUne  of  an  International  Code.     1876. 
FiORE,  P.     Nouveau  Droit  International  Public.     1886. 
Glass,  H.     Marine  International  Law.     1884. 
Grotius,  H.     De  Jure  Belli  ac  Pacis.     3  vols.     (Whewell),  1853. 
Hall,  W.  E.     International  Law.     5th  ed.     1904. 
Halleck,  H.  W.     Elements  of  International  Law.     4th  ed.     (Baker), 

1908. 
Heffter,  a.  G.     Das  Europaische  Volkerrecht  der  Gegenwart.     5th  ed. 

(Geffcken),  1888. 
Hertslet,  E.     Map  of  Europe  by  Treaty,  1815-1891.     4  vols.  1875-1891. 
Higgins,   a.  p.    The  Hague  Peace  Conferences.     1909. 
HoLLs,  F.  W.    The  Peace  Conference  at  The  Hague.     1900. 
HosACK,  J.     Rise  and  Growth  of  the  Law  of  Nations.     1882. 
Kent,  J.     Commentaries  on  American  Law.     14th  ed. 
Lawrence,  T.  J.     Principles  of  International  Law.     3d  ed.     1900. 
Lehr,  E.     Manuel  des  Agents  Diplomatiques  et  Consulaires.     1888. 
Maine,  H.     International  Law.     1888. 

Martens,  F.  de.     Traits  de  Droit  International.     3  vols.     1883-1887. 
Merighnac,  a.     Traits  de  Droit  International  Public.     2  vols.  1905-1907. 
Moore,  J.  B.     Extradition  and  Interstate  Rendition.     2  vols.     1891. 

International  Arbitrations.     6  vols.     1898. 

XV 


xvi  BIBLIOGRAPHY 

Moore,  J.  B.     International  Law  Digest.     8  vols.     1906. 

Nys.     Le  Droit  International.     3  vols.     1904-1906. 

Oppenheim,  L.     International  Law.     2  vols.     1905-1906. 

Ortolan,  T.     Diplomatic  de  la  Mer.     4th  ed.     2  vols.     1864. 

Perels,  F.     Das  internationale  offentliche  Seerecht  der  Gegenwart.   1903. 

Phillimore,  R.     International  Law.     3d  ed.     1879-1889. 

PoMEROY,  J.  N.     International  Law  in  Times  of  Peace.     1886. 

Prad-ier-Fodere,  p.     Trait6  de  Droit  International  Public  Europ^en  et 

Americain.     8  vols.     1885-1897. 
RiviER,  A.     Principes  du  Droit  des  Gens.     2  vols.     1896. 
Scott.     Cases  on  International  Law.     1902. 

Texts  of  the  Peace  Conferences  at  The  Hague,  1899  and  1907.    1908. 

Snow,  F.     American  Diplomacy.     1894. 

International  Law,  Naval  War  College.     2d  ed.     1898. 

Takahashi,  S.     Cases  on  International  Law,  Chino-Japanese.     1896. 

International  Law  Applied  to  the  Russo-Japanese  War.     1908. 

Taylor,  H.     International  Public  Law.     1901. 

Treaties  and  Conventions  between  the  United  States  and  Other  Powers, 

1776-1887.     1887. 
Treaties  in  Force.     Compilation  of  United  States.     1904. 
Twiss,  T.     Rights  and  Duties  of  Nations  in  Time  of  War.     2d  ed   i875. 
Ullmann,  G.     Volkerrecht.     1898. 

Vattel,  E.     Law  of  Nations.     Trans.  Ingraham.     1876. 
Walker,  T.  A.     Science  of  International  Law.     1893. 

Manual  of  Public  International  Law.     1895. 

History  of  the  Law  of  Nations.     Vol.  I.     1899. 

Westlake,  J.     International  Law.     2  vols.     1904-1907. 
Wheaton,  H.     Elements  of  International  Law.     1836. 

Edited  by  Lawrence,  W.  B.     1863. 

Edited  by  Dana,  R.  H.     1865. 

Edited  by  Atlay.     4th  ed.     1904. 

Woolsey,  T.  D.     International  Law.     6th  ed.     1891. 


ABBREVIATIONS  OF  CITATIONS 

The  following  are  the  important  abbreviations  of  citations: 

A.  J.  I.  L American  Journal  of  International  Law. 

Ann.  Cycl Appleton's  Annual  Cyclopsedia. 

Annuaire Annuaire  de  I'lnstitut  de  Droit  International, 

1877-. 
Br.  &  For.  St.  Pap.    .      .     British  and  Foreign  State  Papers. 
Brussels  Code       .      .      .     Conference    at    Brussels,    1874,    on    Military 

Warfare. 

Cr Cranch's  United  States  Reports. 

C.  Rob Chr.  Robinson's  EngUsh  Admiralty  Reports. 

Fed.  Rep Federal  Reporter. 

Gould  &  Tucker        .      .     Gould    and    Tucker's    Notes    on    the    United 

States  Statutes. 

Hall Hall's  International  Law  (5th  ed.). 

Hertslet Hertslet  Map  of  Europe  by  Treaty. 

How Howard  United  States  Reports. 

Instr.  U.  S.  Armies    .      .     Instructions  for  the  Government  of  Annies  of 

the  United  States  in  the  Field. 

Kent's  Com Kent's  Commentaries  (14th  ed.). 

Lawrence Lawrence's  Principles  of  International  Law. 

Moore International  Law  Digest. 

Pet Peters's  United  States  Reports. 

Schuyler Schuyler's  American  Diplomacy. 

Scott Cases  on  International  Law. 

Treaties  of  U.  S.  .      .      .     Treaties  and  Conventions  of  the  United  States, 

1776-1887. 

U.  S United  States  Supreme  Court  Reports. 

U.  S.  For.  Rel.     .      .      .     United  States  Foreign  Relations. 
U.  S.  Rev.  Sts.     .      .  United  States  Revised  Statutes. 

U.  S.  Sts.  at  Large     .  United  States  Statutes  at  Large. 

Wall Wallace,  United  States  Reports. 

Wheat Wheaton's  United  States  Reports. 

Wheat.  D Wheaton's  International  Law  (Dana's  edition). 


xvu 


TABLE  OF  CASES  CITED 


Alabama,  The,  307,  481. 
Alcinous  V.  Nigreu,  245,  478. 
Alexandra,  The,  481. 
Anna,  The,  112. 
Anne,  The,  296. 
Atalanta,  The,  322,  487. 
Bermuda,  The,  338,  487. 
Bolton  V.  Gladstone,  38,  476. 
Brown  v.  United  States,  249,  478. 
Buena  Ventura,  The,  30,  42. 
Caroline,  The,  77,  298,  480. 
Chesapeake,  The,  151. 
Commercen,  The,  317,  485. 
Constitution,  The,  145. 
Cooley  V.  Golden,  112. 
Exchange  v.  M'Faddon,  145,483. 
Florida,  The,  481, 
Foster  v.  Neilson,  52. 
Friendship,  The,  486. 
Gen.  Armstrong,  Case  of  the,  296. 
Georgia,  The,  481. 
Grotius,  The,  270,  478. 
Harcourt  v.  Gaillard,  47,  476. 
Huascar,  The,  64. 
In  re  Castioni,  150. 
In  the  Matter  of  Metzger,  176,  477. 
Jones  V.  United  States,  52,  477. 
Jonge  Tobias,  The,  485. 
Juffrow  Maria  Schroeder,  487. 
Koszta,  The  Case  of,  136. 
Kow-Shing,  324,  486. 
La  Manche,  The,  343,  488. 
Magnus,  The,  486. 
Maria,  The,  325,  337,  488. 
Marianna  Flora,  The,  325. 
M'Dvaine  v.  Coxe's  Lessee,  47. 
Missouri  v,  Nebraska,  112. 


Montezuma,  The,  63. 
Nassau,  The,  343. 
Nebraska  v.  Missouri,  112. 
New  Orleans  v.  Abbagnato,  78. 
Orozembo,  The,  323,  486. 
Pampero,  The,  481. 
Paquete  Habana,  11,  253. 
People  V.  McLeod,  480. 
Peterhoff,  The,  315,  485. 
Prize  Cases,  234,  339. 
Regina  v.  Keyn,  121. 
Rothschild  v.  Queen  of  Portugal,  143. 
Santa  Cruz,  The,  36. 
Santissima  Trinidad,  The,  74,  479. 
Sea  Lion,  The,  277,  479. 
Shenandoah,  The,  481. 
Sir  William  Peel,  The,  343. 
Sophie,  The,  284. 
Springbok,  The,  343. 
State  of  Mississippi  v.  Johnson,  52, 477. 
Stephen  Hart,  The,  338,  487. 
Swineherd,  Case  of  the,  284. 
Three  Friends,  The,  63,  287. 
Twee  Gebroeders,  The,  297,  480. 
Two  Friends,  The,  272,  479. 
United  States  v.  Ambrose  Light,  63. 
United  States  v.  Baker,  265,  478. 
United  States  v.  Rauscher,  38,  476. 
United  States  v.  Rodgers,  117. 
Vavasseur  v.  Krupp,  143. 
Venus,  The,  276,  479. 
Virginius,  The,  77. 
West  Rand  Gold  M.  Co.  v.  King,  11. 
Wildenhus's  Case,  128,  477. 
Williams  v.   Suffolk  Insurance  Com- 
pany, 51,  476. 
WiUiam,  The,  337,  448. 


xiz 


PART  ONE 
GENERAL  AND   HISTORICAL 


OUTLINE  OF  CHAPTER  I 
DEFINITION  AND   GENERAL  SCOPE 

1.  SUBJECT-MATTER   OF   INTERNATIONAL  LAW. 

(a)  From  the  philosophical  standpoint. 

(b)  From  the  scientific  standpoint. 

2.  DIVISIONS. 

(a)  Public  international  law. 

(b)  Private  international  law. 

3.  SCOPE, 


INTERNATIOI^AL  LAW 


CHAPTER  I 
DEFINITION  AND   GENERAL   SCOPE 

1.     Definition 

International  law  may  be  considered  from  two  points  of 
view,  viz. : — 

(a)  From  the  philosophical  point  of  view,  as  setting  forth 
„^.,       ^.    ,      the   rules   and   principles  which  ouqht  to  he  oh- 

Philosophical  _      ^  ^  '      ^  ^ 

and  scientific      Served  in  interstate  relations, 
standpoints.  Qy^  From  the  scientific  point  of  view,  as  set- 

ting forth  the  rules  and  principles  which  are  generally  ob- 
served in  interstate  relations. 

Wheaton's  definition  is  (Wheaton  D.,  23):  "International 
law,  as  understood  among  civilized  nations,  may  be  defined  as 
consisting  of  those  rules  of  conduct  which  reason  deduces, 
as  consonant  to  justice,  from  the  nature  of  the  society  existing 
among  independent  nations;  with  such  definitions  and  modifi- 
cations as  may  be  established  by  general  consent."  (See  also 
1  Pradier-Fodere,  pp.  8,  41.) 

Early  writers  treated  especially  of  those  principles  which 
ought  to  he  observed  in  interstate  action,  and  the  wealth  of 
quotation  and  testimony  introduced  to  establish  the  validity 
of  principles  now  considered  almost  axiomatic,  is  overwhelm- 
ing. In  the  days  of  Ayala,  Brunus,  Gentilis,  Grotius, 
and  Pufendorf,  all  the  argument  possible  was  needed  to 
bring  states  to  submit  to  these  principles.     The  conditions 

3 


4  INTERNATIONAL  LAW 

and  relations  of  states  have  so  changed  that  at  the  present 
time  a  body  of  fairly  estabUshed  rules  and  principles  is 
observed  in  interstate  action,  and  forms  the  subject-matter 
of  international  law.^ 

2.     Divisions 

International  law  is  usually  divided  into: — 

(a)  Public  international  law,  which  treats  of  the  rules  and 

principles  which  are  generally  observed  in  interstate  action, 

and 

(6)  Private  international  law,  which  treats  of  the  rules  and 

«  ^,.      ^         principles  which  are  observed  in  cases  of  con- 

Public  and  . 

private  inter-  flict  of  jurisdiction  in  regard  to  private  rights, 
national  law.  These  cases  are  not  properly  international,  and 
a  better  term  for  this  branch  of  knowledge  is  that  given  by 
Judge  Story,  "The  Conflict  of  Laws."  2 

International  law,  in  the  true  sense,  deals  only  with  state 
affairs. 

3.     Scope 

International  law  is  generally  observed  by  civilized  states; 
some  states,  even  before  they  were  fully  opened  to  western 
civilization,  professed  to  observe  its  rules. ^  The  expansion 
of  commerce  and  trade,  the  introduction  of  new  and  rapid 
means  of  communication,  the  diffusion  of  knowledge  through 
books  and  travel,  the  establishment  of  permanent  embassies, 
the  making  of  many  treaties  containing  the  same  general 
provisions,  and  the  whole  movement  of  modern  civilization 
toward  unifying  the  interests  of  states,  has  rapidly  enlarged 
the  range  of  international  action  and  the  scope  of  international 
law.    Civilized  states,  so  far  as  possible,  observe  the  rules 

'  Hall,  introductory  chapter. 

*  Dicey,  "Conflict  of  Laws,"  English,  with  notes  of  American  cases, 
by  J.  B.  Moore. 

3  Wheaton's  "  International  Law,"  translated  and  made  a  text-book 
for  Chinese  officials  in  1864. 


DEFINITION  AND  GENERAL  SCOPE  5 

of  international  law  in  their  dealings  with  uncivilized  com- 
munities which  have  not  yet  attained  to  statehood.  Inter- 
national law  covers  all  the  relations  into  which  civilized  states 
may  come,  both  peaceful  and  hostile.  In  general,  its  scope 
should  not  be  extended  so  as  to  interfere  with  domestic  affairs 
or  to  limit  domestic  jurisdiction,  though  it  does  often  Hmit 
the  economic  and  commercial  action  of  a  given  state,  and 
determine  to  some  extent  its  policy. 


OUTLINE  OF  CHAPTER  II 
NATURE   OF   INTERNATIONAL   LAW 

4.     EARLY   TERMINOLOGY. 

(a)  Use  of  the  term  jus  naturale. 

(b)  Jus  gentium  defined. 

(c)  Use  of  other  terms. 

6.     HISTORICAL   BASES. 

6.  ETHICAL   BASES. 

7.  JURAL   BASES. 

(a)  Sanction  of  Roman  law. 

(b)  Ethical  influence  of  canon  law. 

(c)  Practical  influence  of  common  law. 

(d)  Equity  and  recognition  of  principles. 

(e)  Admiralty  law  and  maritime  relations. 

8.  INTERNATIONAL  LAW  AND  STATUTE  LAW. 

9.  INTERNATIONAL  LAW  AND  LAW  IN  GENERAL. 


6 


CHAPTER  II 
NATURE  OF  INTERNATIONAL  LAW 

4.     Early  Terminology 

The  conception  cf  those  rules  and  principles  of  which 
international  law  treats  has  varied  greatly  with  periods,  with 
conditions,  and  with  writers. 

The  early  terminology  indicates  the  vagueness  of  the  con- 
ceptions of  the  principles  governing  the  conduct  of  man 
toward  his  fellows. 

(a)  Jus  naturale  is  defined  broadly  by  Ulpian  ^  as  "the 

law  which  nature  has  taught  all  Hving  creatures,  so  as  to  be 

f .,  common   to    men   and   beasts."     Grotius    also 

Use  01  tne 

term  jus  uscs  this  term,  defining  it  as  "  the  dictate  of 

naturale.  right  reason,  indicating  that  any  act  from  its 

agreement  or  disagreement  with  rational  nature  has  in  it 
moral  turpitude  or  moral  necessity,  and  consequently  such 
act  is  either  forbidden  or  enjoined  by  God,  the  author  of 
nature."^  Lieber  says,  ''The  law  of  nature,  or  natural  law 
...  is  the  law,  the  body  of  rights,  which  we  deduce  from  the 
essential  nature  of  man."  ^  The  discussion  of  jus  naturale 
has  been  carried  on  from  an  early  period,^  covering  many 
portions  of  the  field  of  modern  international  law,  and  making 
possible  the  broadening  and  strengthening  of  its  foundation. 
(6)  Jus  gentium,  according  to  Justinian,  is  "that  which 
natural  reason  has  established  among  all  men,  that  which 

'  "Institutes,"  I,  1,  1.  »  "De  Jure  Belli,"  Bk.  I,  Ch.  I,  §  10. 

»  "Political  Ethics,"  2d  ed.,  I,  p.  68. 
'  Maine,  "Ancient  Law,"  Ch.  IV. 

7 


8  INTERNATIONAL  LAW 

all  peoples  uniformly  regard."  ^     ''Jus  gentium  is  common 
to  the  whole  human  kind."  ^     This  idea  of  a  body  of  law 

common  to  all  men  assumed  a  different  mean- 
defined* '"™      ing  when  states   multiplied,   and   writer  after 

writer  redefined  and  quahfied  its  meaning.  Jus 
gentium  became  the  subject  of  many  controversies. ^  Among 
the  quaUfying  terms  were  ''internal,"  ''necessary,"  "natural," 
"positive." 

(c)  Other  terms  were  used  to  name  the  field  or  portions  of 
the  field  of  modern  international  law.     Jus  fetiale  appHed 

particularly  to  the  declaration  of  war  and  sane- 
other  terms.      ^^^^  ^^  treaties.*    Jus  inter  gentes  was  used  by 

Zouch  in  1650  to  name  the  real  field  of  inter- 
national law.  Law  of  nations  was  the  term  commonly  used 
in  England  till  the  days  of  Bentham;  since  that  time  the 
term  international  law,  which  he  adopted,  has  steadily  grown 
in  favor,  until  it  has  come  into  almost  universal  use  in  Enghsh- 
speaking  countries.^ 

The  change  in  terminology  shows  in  a  measure  the  progress 
in  demarking  the  field  of  international  law. 

5.     Historical  Bases 

International  law  in  its  beginning  may  have  been  largely 
determined  by  abstract  reasoning  upon  what  ought  to  be  the 
principles  and  rules  governing  interstate  relations;  but  in  its 
later  development,  as  it  has  become  more  and  more  recog- 
nized as  a  safe  guide  for  the  conduct  of  states  in  their  relations 
with  other  states,  direct  investigation  of  what  is  has  deter- 
mined the  character  of  the  rules  and  principles.  What  is 
state  practice  in  a  given  case  can  be  determined  only  by 
reference  to  history.    From  the  history  of  cases  and  practice, 

'  "  Institutes,"  T,  2,  1.  ^  " Institutes,"  I,  2,  2. 

»  Heffter,  "  Volkerrecht,"  §  2.     •  Cicero,  "  De  Republica,"  2,  17. 

•  Droit  international  is  the  French  term,  subsequently  adopted. 


NATURE   OF  INTERNATIONAL  LAW  9 

the  general  rule  and  principle  is  derived,  and  modern  inter- 
national law  thus  comes  to  rest  largely  upon  historical  bases. 

6.     Ethical  Bases 

While  international  law  now  looks  to  history  as  one  of  its 
most  important  bases,  it  must  nevertheless  accord  somewhat 
closely  with  the  ethical  standards  of  the  time,  and  wiU  tend 
to  approximate  to  them.  The  growth  of  the  body  of  law 
upon  slavery  has  rested  on  both  ethical  and  historical  bases. 
International  law  is  principally  an  output  of  civilized  nations 
having  certain  ethical  standards.  Such  ancient  practices  as 
the  giving  of  hostages  for  the  fulfillment  of  treaty  stipulations 
have  disappeared,  and  ethical  bases  are  generally  recognized 
in  determining  practice.^  While  these  ethical  bases  should 
be  recognized,  international  law  cannot  be  deduced  from 
subtle  reasoning  upon  the  abstract  ideas  of  what  it  ought  to 
be.  Modern  international  law  treats  mainly  of  what  is,  but 
what  is  in  international  relations  is  always  conditioned  by  a 
recognition  of  what  ought  to  be. 

**  7.    Jural  Bases 

The  nature  of  modern  international  law  is  in  part  due  to 
the  jural  bases  upon  which  it  rests. 

(a)  The  Roman  law  was  the  most  potent  influence  in 

determining  the  early  development,  particularly  in  respect 

to  dominion  and  acquisition  of  territory.     In- 

Sanction  of  ,  j>ii  >       -i  j    •        ^'      • ,  i 

Roman  law.       ternational  law  gamed  a  eertam  dignity  and 
weight  from  its  relation  to  the  Roman  law,  the 
most  potent  legal  institution  in  history. 

(6)  The  canon  law,  as  the  law  of  the  ecclesiastics  who  were 
supposed  to  recognize  the  broadest  principles  of  human 
unity,  gave  an  ethical  element  to  early  international  law. 
Gregory  IX  (1227-1241),  the  Justinian  of  the  Church,  reduced 

*  Last  hostages  given  in  Europe  1748,  by  England  to  France. 


10  INTERNATIONAL  LAW 

canon  law  to  a  code.  The  abstract  reasoning  upon  its  prin- 
ciples among  the  clergy  and  counsellors  of  kings,  made  it  a 
Ethical  influ-  P^^*  ^^  ^^^  mental  stock  of  the  early  text 
ence  of  canon  writers,  while  it  strongly  influenced  state  prac- 
^^^'  tice.     The  canon  law  gave  a  quasi-religious  sanc- 

tion to  its  observance,  and  in  so  far  as  international  law  embod- 
ied its  principles,  gave  the  same  sanction  to  the  observance 
of  international  equity.  This  may  be  seen  in  the  religious 
formula  in  treaties,  even  to  a  late  date, 

(c)  The  common  law,  itself  international  as  according  to 
Practical  influ-  tradition,  derived  by  Edward  the  Confessor 
ence  of  com-  from  three  systems,  and  subsequently  modified 
mon  law.  j^y  g^g^Qj^j^  furnished  a  practical    element    in 

determining  the  nature  of  international  law. 

(rf)  Equity  promoted  the  development  of  the  recognition 
of  principles  in  international  law.  In  the  early  days  of  Eng- 
Equity  and  ^^^^  cases  arose  which  were  not  within  the 
recognition  of  cognizance  of  the  common  law  judges.  The 
principles.  petitioner  having  applied  to  the  king  in  Parlia- 
ment or  in  council  for  justice,  his  petition  was  referred  to  the 
chancellor,  the  keeper  of  the  king's  conscience,  who,  after  a 
hearing,  required  that  what  was  equitable  should  be  done. 
Thus  the  simpler  matters  came  before  the  common  law 
court,  the  more  difficult  before  the  equity  court.  Even 
now  a  jury  largely  deals  with  questions  relating  to  the  recov- 
ery of  money,  and  their  decision  is  a  verdict,  which  is  followed 
by  a  judgment.  In  an  equity  court,  the  more  difficult  prob- 
lems of  business  and  commerce  are  considered;  and  the  de- 
cision of  the  judge  is  a  decree. 

(e)  Admiralty  law  may  be  defined  as  in  one  sense  the  law 
Admiralty  law  ^^  ^^^  ^^^'  Anterior  to  and  during  the  Middle 
and  maritime  Ages,  the  maritime  relations  of  states  gave 
relations.  ^-^^^  ^^  ^^^  laws,  many  of  which  are  to-day  well- 

recognized  principles  of  international  law. 


NATURE   OF  INTERNATIONAL  LAW  11 

8.     International  Law  and  Statute  Law 

Statute  law  proceeds  from  legislative  enactment,  and  is 
enforced  by  the  power  of  the  enacting  state  within  its  juris- 
diction. 

International  law,  on  the  other  hand,  is  not  formally 
enacted,  and  has  no  tribunal  for  its  enforcement.  In  case  of 
infraction  of  its  rules  nations  may  resort  to  war,  when  the 
issue  may  rather  depend  upon  the  relative  strength  of  the 
two  states  than  upon  the  justice  of  the  cause,  or  the  states 
may  agree  to  refer  their  differences  to  some  form  of  arbitral 
adjudication. 

9.     Relation  of  International  Law  to  Law 

If  law  is  defined,  as  by  Austin,  "a  rule  laid  down  for 
the  guidance  of  an  intelligent  being  by  an  intelligent  being 
having  power  over  him,"  ^  it  would  not  be  possible  to  include 
under  it  international  law  without  undue  liberality  in  the 
interpretation  of  the  language. 

In  form,  however,  law  is  a  body  of  rules  and  principles 
in  accord  with  which  phenomena  take  place.  If  these  rules 
are  not  followed  as  enunciated  by  the  state  in  case  of  statute 
law,  certain  penalties  are  inflicted.  The  nature  of  the  penalty 
must  to  a  great  extent  depend  on  the  source.  International 
law  is  the  body  of  rules  and  principles,  in  accord  with  which, 
interstate  phenomena  take  place.  Violations  of  international 
law  do  not  meet  the  same  penalties  as  those  of  statute  law, 
as  they  do  not  have  the  same  source  nor  an  established 
tribunal  for  their  enforcement.  International  law  is,  how- 
ever, in  form  law  and  in  practice  so  regarded.^ 

'  "Lectures  on  Jurisprudence,"  I. 

^  Walker,  "Science  of  International  Law,"  Chs.  I  and  II,  fully  discusses 
Austin's  definition.  For  decisions  of  the  highest  courts  see  West  Rand 
Gold  Mining  Co.  v.  The  King,  L.  R.  2  K.  B.  (1905)  391;  The  Paquete 
Habana  (1900),  175  U.  S.,  677. 


OUTLINE  OF  CHAPTER  III 
HISTORICAL   DEVELOPMENT 

10.  EARLY   PERIOD. 

(a)  Recognition  by  Greece  of  international  obligations. 

(b)  Rome's  contribution  to  international  law. 

11.  MIDDLE   PERIOD. 

(a)  Supremacy  of  Roman  Empire. 

(b)  Unifying  influence  of  the  Church. 

(c)  Feudalism  and  the  territorial  basis  of  sovereignty. 

(d)  Crusades  and  a  broader  basis  of  comity. 

(e)  Chivalry  and  a  basis  of  equitable  dealing. 

(f)  Expansion  of  commerce  and  the  development  of  maritime  codes. 

(g)  Consuls  and  the  development  of  maritime  law. 
(h)  Discovery  of  America. 

(i)    Contributions  of  the  Middle  Period. 

12.  MODERN   PERIOD   FROM    1648. 

(a)  1648-1713:  Development  of  principles. 

(b)  1713-1815:  Testing  of  principles. 

(c)  1815-1898:  Practical  application  of  principles. 

(d)  1898  to  date:  Progress  toward  international  peace. 

(1)  The  First  Peace  Conference  at  The  Hague. 

(2)  Results  of  the  First  Peace  Conference. 

(3)  The  Second  Peace  Conference  at  The  Hague  and  its  con- 

ventions. 

(4)  The    International    Naval    Conference    of   1908-1909,    and 

Declaration  of  London. 

(5)  Contributions  in  this  period  to  international  law. 

13.  INFLUENCE   OF   THE   UNITED   STATES. 

(a)  The  regulations  of  1793  in  regard  to  neutrality. 

(b)  Freedom  of  commerce  and  navigation.  "" 

(c)  Open-door  policy  in  the  Far  East. 

(d)  Protection  of  citizens  in  their  legitimate  rights. 

(e)  Contributions  to  establishment  of  laws  of  war. 

(f)  Advocacy  of  peaceful  settlement  of  international  disputes. 

(g)  Isolation  of  the  United  States  and  its  influence. 

14.  WRITERS. 

(a)  Life  and  work  of  Hugo  Grotius  (1583-1645). 

(b)  Other  authorities  on  international  law. 


12 


CHAPTER  III 
HISTORICAL   DEVELOPMENT 

10.    Early  Period 

The  history  of  the  development  of  those  rules  and  principles 
now  considered  in  international  law  naturally  falls  into  three 
periods,  early,  middle  and  modern.^ 

The  early  period  dates  from  the  development  of  early 
European  civilization,  and  extends  to  the  beginning  of  the 
Christian  Era.  During  this  period  the  germs  of  the  present 
system  appear.^ 

(a)  The  dispersion  of  the  Greeks  in  many  colonies  which 

became  practically  independent  communities  gave  rise  to 

systems  of  intercourse  involving  the  recognition 

Recognition  by  .        .  .  . 

Greece  of  inter-  of  general  obligations.^  The  maritime  law  of 
national  obii-  Rhodes  is  an  instance  of  the  general  acceptance 
of  common  principles.  The  main  body  of  this 
law  has  not  survived,  yet  the  fragment  appearing  in  the 
Digest,  De  Lege  Rhodia  de  Jactu,^  is,  after  more  than  two 
thousand  years,  the  basis  of  the  present  doctrine  of  jettison. 

'  Bluntschli,  "  Volkerrecht, "  Introduction;  Lawrence,  §  20. 

^Walker,  "Science  of  International  Law,"  Ch.  Ill,  p.  58.  "But  when, 
beside  the  vague  and  fleeting  World  Law,  the  law  of  all  humanity,  was 
recognized  a  law  special  to  certain  peoples,  when  the  distinction  was 
drawn  between  the  progressive  and  the  stationary,  between  civilization 
and  barbarity,  when  the  Greek  noted  rh  v6ixiixa  rwv  'Ewiivuy,  and  the 
Roman  felt  the  ties  of  a  particular  Jus  Fetiale  and  a  particular  Jus  Belli, 
International  Law  cast  off  its  swaddling  bands,  and  began  its  walk  on 
earth." 

'  Cicero,  "Pro  Lege  Manilla,"  Ch.  XIII. 

*  Justinian  Digest,  14.  2,  "  If  goods  are  thrown  overboard  to  lighten 
the  ship,  as  this  is  done  for  the  sake  of  all,  the  loss  shall  be  made  good  by 
a  contribution  of  all." 

13 


14  INTERNATIONAL  LAW 

It  is  reasonable  to  suppose  that  though  the  words  of  other 
portions  of  the  Rhodian  law  are  lost,  the  principles  may  have 
entered  into  formation  of  later  compilations.  The  recognition 
by  Greece  of  the  existence  of  other  independent  states,  and 
the  relations  into  which  the  states  entered,  developed  crude 
forms  of  international  comity,  as  in  the  sending  and  receiving 
of  ambassadors  i  and  the  formation  of  alliances. 2 

(6)  Rome  made  many  contributions  to  the  principles  of 
international  law  in  the  way  of  the  extension  of  her  own  laws 
Rome's  contri-  *°  wider  Spheres,  and  in  the  attempt  to  adapt 
bution  to  inter-  Roman  laws  to  conditions  in  remote  territories, 
national  law.      j^  ^j^-g  gg^j-jy  period  Rome  may  be  said  to  have 

contributed  to  the  field  of  what  is  now  considered  private  inter- 
national law  rather  than  to  that  of  public  international  law. 
Wlierever  Rome  extended  her  political  rule,  she  adapted  her 
laws  to  the  peoples  brought  under  her  sway.  This  is  evident 
in  the  laws  in  regard  to  marriage,  contract,  property,  etc. 
The  dominance  of  Rome  impressed  her  laws  on  others,  and 
extended  the  influence  of  those  principles  which,  from 
general  practice,  or  conformity  to  accepted  standards, 
gained  the  name  Jus  Gentium.^ 

'  Bluntschli,  "Volkerrecht,"  Introduction;  Thucydides,  " Peloponnesian 
War,"  II,  12,  22,  29. 

^  The  Amphyctionic  League  recognized  some  principles  of  interstate 
right  and  comity,  as  well  as  preserved  Grecian  institutions  and  religious 
traditions.  This  is  shown  in  the  oath  of  the  members,  "We  will  not  de- 
stroy any  Amphyctionic  town  nor  cut  it  off  from  running  water,  in  -war  or 
peace;  if  any  one  shall  do  this,  we  will  march  against  him  and  destroy  his 
city.  If  any  one  shall  plunder  the  property  of  the  god,  or  shall  be  cogni- 
zant thereof,  or  shall  take  treacherous  counsel  against  the  things  in  his 
temple  at  Delphi,  we  will  punish  him  with  foot  and  hand  and  voice,  and  by 
every  means  in  our  power."  They  also  agreed  to  make  and  observe  hu- 
mane rules  of  warfare.     See  also  Bluntschli,  "Volkerrecht,"  Introduction. 

3  Maine,  "  Ancient  Law,"  Ch.  III.  The  idea  as  to  what  jus  gentium  was, 
of  course  varied  with  times.  Under  the  Empire  it  lost  its  old  meaning. 
See  Cicero,  "De  Officiis,"  III,  17;  Livy,  VI,  17;  IX,  11;  I,  14;  V,  36; 
Sallust,  "Bell.  Jug.,"  XXII;  Tacitus,  "Ann.,"  1,  42;  "Quintus  Curtius," 
IV,  11,  17. 


HISTORICAL  DEVELOPMENT  15 

11.     Middle  Period 

The  varied  struggles  of  the  middle  period — from  the 
begimiing  of  the  Christian  Era  to  the  middle  of  the  seven- 
teenth century — had  a  decided  influence  upon  the  body  and 
form  of  international  law. 

(a)  The  growth  of  the  Roman  Empire,  as  the  single  world- 
power  and  sole  source  of  political  authority,  left  small  need 
of  international  standards.  The  appeal  in  case 
Roml^Empire.  °^  disagreement  was  not  to  such  standards,  but 
to  Csesar.  The  idea  of  one  common  supremacy 
was  deep-rooted.  Political  assimilation  followed  the  expan- 
sion of  political  privileges. 

(6)  A  similar  unifying  influence  was  found  in  the  growth 
of  the  Christian  Church  which  knew  no  distinction — bond  or 

Unifying  influ-  ^^^^'  '^^^  ^^  Gentile.  Christianity,  called  to  be 
ence  of  the        the  state  religion  early  in  the  fourth  century, 

^^  ■  modeled  its  organization  on  that  of  the  Roman 

Empire;  and  from  the  sixth  century,  with  the  decay  of  the 
Empire,  the  Church  became  the  great  power.  The  belief  in 
the  permanent  continuance  and  universality  of  Roman 
dominion  was  strengthened  by  the  Church,  although  mate- 
rially changed  in  its  nature.^  Whatever  the  inconsistencies  in 
Church  and  State  during  the  first  ten  centuries  of  our  era, 
there  had  grown  up  the  idea,  of  great  importance  for  inter- 
national law,  that  there  could  be  a  ground  upon  which  all  might 
meet,  a  belief  which  all  might  accept,  both  in  regard  to  polit- 
ical and  religious  organization.  For  five  hundred  years  before 
the  days  of  Boniface  VIII  (1294-1303),  the  holder  of  the  papal 
office  had  from  time  to  time  acted  as  an  international  judge. 

The  canon  law,  codified  by  Gregory  IX  (1227-1241),  was 
planned  to  rival  the  Corpus  Juris  Civilis.  The  Popes,  with 
varying  degrees  of  success,  tried  to  render  such  international 

'  Bryce,  "Holy  Roman  Empire,"  Ch.  VII. 


16  INTERNATIONAL  LAW 

justice  as  the  discordant  elements  introduced  by  the  growth 
of  cities  and  rise  of  nationalities  demanded.  ^  From  the  Coun- 
cil of  Constance  (1414r-1418),  which  was  a  recognition  of  the 
fact  of  nationality,  and  at  which  the  emperor  for  the  last 
time  appeared  as  the  great  international  head,  the  decline 
of  both  the  Church  and  the  Empire  as  direct  international 
factors  was  rapid. 

(c)  By  the  eleventh  century  feudalism  had  enmeshed  both 
the  temporal  and  spiritual  authorities.     This  system,  closely 

related  to  the  possession  of  land  and  gradation 

Feudalism  and  i     i        i        ,  r     ^ 

the  territorial  01  classes,  discouraged  the  development  of  the 
basis  of  ideas  of  equality  of  state  powers  necessary  for 

the  development  of  international  law,  though 
it  did  emphasize  the  doctrine  of  sovereignty  as  based  on  land 
in  distinction  from  the  personal  sovereignty  of  earlier  days. 

(d)  The  Crusades  (1096-1270),  uniting  Christendom  against 
the  Saracen  for  foreign  intervention,  awakening  Europe  to 
Crusades  and  a  ^  ^^^  civilization,  expanding  the  study  and 
broader  basis  practice  of  the  Roman  law  which  feudal  courts 
m  comity.  j^^^  checked,  weakening  many  feudal  overlords, 
enfranchising  towns,  freeing  the  third  estate,  spreading  the 
use  of  the  Latin  language,  enlarging  and  diversifying  com- 
merce, teaching  the  possible  unity  of  national  interests,  led 
to  the  apprehension  of  a  broader  basis  in  comity  which 
hastened  the  growth  of  interstate  relations.^ 

(e)  The  code  of  chivalry  and  the  respect  for  honor  wliich  it 
Chivalry  and  a  enjoined  introduced  a  basis  of  equitable  dealing 
basis  of  equi-  which  on  account  of  the  international  character 
table  eaimg.  ^^  ^j^^  orders  of  chivalry  reacted  upon  state 
practice  throughout  Christian  Europe. 

'  Bryce,  "Holy  Roman  Empire,"  Chs.  VII  and  XV.  The  "Truce  of 
God,"  introduced  by  the  clergy  (i034),  left  only  about  eighty  days  in  a 
year  for  fighting  and  settling  feuds. 

'On  effects  of  Crusades,  see  Milman,  "Latin  Christianity,"  VII,  6; 
Hallam,  "Middle  Ages,"  Ch.  Ill,  Pt.  I;  Bryce,  "Holy  Roman  Empire," 
Chs.  XI,  XIII. 


HISTORICAL  DEVELOPMENT  17 

(/)  The  expansion  of  commerce,  especially  maritime,  em- 
phasized the  duties  and  rights  of  nations.     The  old  Rhodian 
laws   of   commerce,   which   had   in   part   been 
^ommelle^L    incorporated  in  and  expanded  by  the  Roman 
the  develop-      code  during  the  days  before  the  overthrow  of 

ment  of  maxi-  ^-^q  Empire,  formed  a  basis  for  maritime  inter- 
time  codes. 

course.     From  the  fall  of  the  Empire  to  the 

Crusades  commerce  was  attended  with  great  dangers  from 
pirates  on  the  sea  and  from  exactions  in  the  port.  The  so- 
called  Amalfitan  Tables  seem  to  have  been  the  sea  law  of 
the  latter  part  of  the  eleventh  century.  The  much  more 
detailed  Consolato  del  Mare  of  doubtful  origin  between  the 
twelfth  and  fourteenth  centuries  derived  some  of  its  principles 
from  the  eleventh-century  code.  The  Consolato  was  recog- 
nized by  maritime  powers  as  generally  binding,  and  made 
possible  wide  commercial  intercourse.  Many  of  its  principles 
have  stood  to  the  present  day,  though  touching  such  ques- 
tions as  the  mutual  rights  of  neutrals  and  belligerents  on  the 
sea  in  time  of  war.^  As  the  Consolato  formed  the  code  of 
Southern  Europe,  the  Laws  of  Oleron  formed  the  maritime 
code  for  Western  Europe,  and  were  compiled  the  latter  part 
of  the  twelfth  century,  whether  by  Richard  I  or  by  his  mother, 
Queen  Eleanor,  is  a  disputed  question.  These  laws  are  based 
in  large  measure  on  the  other  existing  systems.  The  Laws 
of  Wisby,  dating  from  about  1288,  supplemented  the  Laivs  of 
Oleron,  and  formed  the  fundamental  law  of  maritime  courts 
of  the  Baltic  nations.^  The  Hanseatic  League  in  1591  com- 
piled a  system  of  marine  law,  Jus  Hanseaticum  Maritimum,^ 
based  on  the  codes  of  Western  and  Northern  Europe.  The 
maritime  law  of  Europe  had  been  practically  unchanged  for 
nearly  a  hundred  years,  when  systematized  in  1673  under 

I  Hall,  p.  713. 

*  Laws  of  Wisby  contain  early  reference  to  marine  insurance,  §  66. 

'  Expanded  in  1614. 


18  INTERNATIONAL  LAW 

Louis  XIV.  Similar  to  the  maritime  codes  are  the  "Customs 
of  Amsterdam,"  the  "Laws  of  Antwerp,"  and  the  "Guidon 
de  la  Mar."  i 

ig)  Closely  connected  with  the  development  of  maritime 
law  during  the  latter  part  of  the  middle  period  was  the  estab- 
Consuis  and  the  lishment  of  the  office  of  consul.  The  consuls, 
development  of  under  the  title  of  consules  marinariorum  et  mer- 
maritime  law,  cutorum,  resident  in  foreign  countries,  assisted 
by  advice  and  information  the  merchants  of  their  own  coun- 
tries, and  endeavored  to  secure  to  their  countrymen  such 
rights  and  privileges  as  possible.  Consuls  seem  to  have  been 
sent  by  Pisa  early  in  the  eleventh  century,  and  were  for 
some  time  mainly  sent  by  the  Mediterranean  countries  to  the 
East. 

(h)  The  discovery  of  America  marked  a  new  epoch  in 

territorial   and   mercantile   expansion,   and  in- 

iscovery  o       troduced  new  problems  among  those  handed 

America.  ^  ° 

down  from  an  age  of  political  chaos. 
(i)  The  middle  period,  with  all  its  inconsistencies  in  theory 
and   practice,   had  nevertheless  taught   men  some  lessons. 
Contributions     "^^^^  world-empire  of  Rome  showed  a  common 
of  the  political  sovereignty  by  which  the  acts  of  remote 

Middle  Period,  territories  might  be  regulated;  the  world-relfgion 
of  the  Church  of  the  middle  period  added  the  idea  of  a  common 
bond  of  humanity.  Both  of  these  conceptions  imbued  men's 
minds  with  the  possibility  of  a  unity,  but  a  unity  in  which 
all  other  powers  should  be  subordinate  to  a  single  power,  and 
not  a  unity  of  several  sovereign  powers  acting  on  established 
principles.  The  feudal  system  emphasized  the  territorial 
basis  of  sovereignty.  The  Crusades  gave  to  the  Christian 
peoples  of  Europe  a  knowledge  and  tolerance  of  one  another 
which  the  honor  of  the  code  of  chivalry  made  more  beneficent, 
while  the  growth  of  the  free  cities  opposed  the  dominance  of 

»  De  Valroger,  "Droit  Maritime,"  I,  §  1. 


HISTORICAL  DEVELOPMENT  19 

classes,  feudal  or  religious.  The  fluctuations  and  uncertainties 
in  theory  and  practice  of  international  intercourse,  both  in 
peace  and  war,  made  men  ready  to  hear  the  voice  of  Grotius 
^(1583-1645),  whose  work  marks  the  beginning  of  the  modern 
period. 

12.     Modern  Period  (1648-) 

The  modern  period  of  international  law  may  be  divided 
into  four  epochs:  (a)  From  the  Peace  of  Westphalia,  1648, 

'  to  the  Peace  of  Utrecht,  1713;  (6)  from  the  Peace  of  Utrecht, 
1713,  to  the  Congress  of  Vienna,  1815;  (c)  from  the  Congress 
of  Vienna,  1815,  to  the  call  for  the  First  Hague  Peace  Con- 
ference, 1898;  (d)  from  the  call  for  the  First  Hague  Peace 

■    Conference,  1898,  to  the  present  time. 

(a)  It  became  evident  at  the  termination  of  the  Thirty 
Years'  War  in  1648  that  the  old  doctrines  of  world-empire, 
1648-1713-  whether  of  Pope  or  of  Eniperor,  could  no  longer 
Development  be  sustained.  The  provisions  of  the  Peace  of 
of  principles.  ^Yestphalia,  while  not  creating  a  code  to  govern 
international  relations,  did  give  legal  recognition  to  the 
existence  of  such  conditions  as  Grotius  contemplated  in 
"De  Jure  Belli  ac  Pacis,"  viz.  sovereign  states,  equal  to 
one  another  as  such  regardless  of  area  and  power.  The 
decree  of  James  I,  in  1604,  establishing  a  neutral  zone  by 
"a  straight  line  drawn  from  one  point  to  another  about 
the  realm  of  England,"  in  which  neither  of  the  parties  to 
the  war  between  the  United  Pro\'inces  and  Spain  should 
carry  on  hostilities,  formed  a  precedent  in  maritime  jurisdic- 
tion, even  though  the  decree  was  but  imperfectly  enforced. 
This  early  part  of  the  modern  period  was  especially  fruitful 
in  treatises  and  discussions  upon  the  nature  of  mternational 
law,  and  upon  what  it  ought  to  he,  and  also  upon  the  law  of 
the  sea,  particularly  Grotius's  ''Mare  Liberum,"  1609,  Selden's 
''Mare  Clausum,"   1635,  and  Bynkershoek's  "De  Dominio 


20  INTERNATIONAL  LAW 

Maris,"  1702.i  During  this  period  the  public  law  was  dili- 
gently studied;  the  right  of  legation  became  generally  recog- 
nized; French  gradually  took  the  place  of  Latin  in  inter- 
national intercourse,^  with  a  corresponding  modern  spirit  in 
the  practice,  though  the  discussions  were  usually  ponderous 
and  abstract;  the  idea  of  the  balance  of  power  flourished  and 
formed  a  subject  of  frequent  controversy;  the  principle  of 
intervention  upon  political  grounds  was  propounded  and 
acknowledged;  and  the  opinions  of  the  great  publicists,  such 
as  Grotius,  gained  great  weight  and  were  widely  studied.  The 
general  principles  of  neutral  trade,  including  "free  ships,  free 
goods,"  were  laid  down,  prize  laws  and  provisions  as  to  con- 
traband were  adopted,  numerous  treaties  of  commerce  gave 
witness  of  the  growth  of  international  intercourse,  and  both 
men  and  states  became  somewhat  more  tolerant. 

(6)  The  Treaty  of  Utrecht  (1713)  contained  recognition 
of  many  of  the  principles  which  had  become  fairly  well 
1713-1815:  accepted  during  the  years  since  1648.  There 
Testing  of         were  evidences  of  the  growing  influences  of  the 

principles.  -^^^   ^y^j,jj    ^p^^    ^j^^    p^j.^^   ^^    ^^^    ^j^.   ^^^ 

American  fisheries  question  appeared;  the  international 
regulations  in  regard  to  commerce  were  multiplied,  and 
the  central  subject  of  the  preamble  was  the  subject  of  "the 
balance  of  power."  3  -por  many  years  the  question  of  ^suc- 
cession to  the  various  seats  of  royal  and  princely  power 
formed  the  chief  subject  of  international  discussion.  During 
the  eighteenth  century  the  steady  growth  of  England  as  a 
maritime  power  and  the  European  complications  over  trans- 
Atlantic  possessions  gave  rise  to  new  international  issues.  The 
basis  of  modern  territorial  acquisition  was  found  in  the  Roman 

^  The  Marine  Ordinance  of  Louis  XIV,  1681,  became  the  basis  of  sea  law. 

^  With  the  dechne  of  the  influence  of  the  "Holy  Roman  Empire,"  the 
use  of  Latin  in  diplomacy  became  less  general. 

5  Abb^  Saint-Pierre,  in  three  volumes,  1729,  "  Abr^g^  du  Projet  de  Paix 
perpdtuelle,"  outlines  a  plan  for  peace  by  fixed  system  of  balance  of 
power. 


HISTORICAL  DEVELOPMENT  21 

law  of  ocaipatio,  and  the  Roman  law  of  river  boundaries  was 
almost  exactly  followed.^  From  the  Treaty  of  Aix-la-Chapelle 
(1748),  in  which  former  treaties  were  generally  renewed,  to 
1815,  the  growth  and  observation  of  the  principles  of  inter- 
national law  was  spasmodic.  By  the  Peace  of  Paris  and  by 
the  Peace  of  Hubertsburg  (1763),  many  questions  of  terri- 
torial jurisdiction  were  settled.  England,  then  become  the 
dominant  power  in  North  America,  with  greatly  extended 
power  in  the  East,  impressed  upon  international  practice 
adherence  to  actual  precedent  rather  than  to  theoretically 
correct  principles.  At  the  same  time  in  Central  Europe 
the  conditions  were  ripe  for  that  violation  of  international 
justice,  the  partition  of  Poland  in  1772,  followed  by  the 
further  partition  in  1793  and  1795.  The  rights  which  the 
concert  of  nations  was  thought  to  hold  sacred  were  the  very 
ones  most  ruthlessly  violated  by  the  neighboring  powers. 
The  American  Revolution  of  1776  and  the  French  Revolution 
of  1789  introduced  new  principles.  The  "armed  neutrality" 
of  1780,2  while  maintaining  the  principle  "free  ships,  free 
goods,"  made  impossible  the  converse,  "enemy's  ships, 
enemy's  goods,"  which  had  been  held.  Both  the  American 
and  French  Revolutions  made  evident  the  necessity  of  the 
development  of  the  laws  of  neutrality  hitherto  greatly  con- 
fused and  disregarded.  3  During  the  French  Revolution  it 
seemed  that  to  Great  Britain  alone  could  the  states  of  Europe 
look  for  the  practice  of  the  principles  of  international  law. 
After  the  French  Revolution  it  was  necessary  to  define  just 
intervention  that  Europe  might  not  be  again  convulsed.  It 
became  clear  that  the  state  was  an  entity  and  distinct  from 
the  person  of  its  king.  No  longer  could  the  king  of  France 
or  of  any  European  state  say  "L'etat,  c'est  moi."    Even 

»  "Institutes,"  II,  1,  21,  22. 
'  Declaration  of  Russia,  Feb.  28,  1780. 

^  The  works  of  Moser  (1701-1786)  and  his  immediate  followers  attempt 
to  make  practical  the  principles  of  international  law. 


22  INTERNATIONAL  LAW 

though  personal  selfishness  of  monarchs  might  pervade  the 
Congress  of  Vienna,  the  spirit  of  nationality  could  not  long 
be  restrained.  The  period  from  1713  to  1815  had  tested  the 
general  principles  propounded  during  the  seventeenth  cen- 
tury, and  it  was  found  necessary  to  expand  their  interpreta- 
tion, while  the  growth  of  commerce  and  intercourse  made 
necessary  new  laws  of  neutrality  and  new  principles  of  comity, 
such  as  were  in  part  laid  down  in  the  early  days  of  the  nine- 
teenth century,  as  seen  in  the  resistance  to  the  right  of  search, 
the  declaration  against  African  slave  trade,  establishment  of 
freedom  of  river  navigation,  improved  regulations  in  regard 
to  trade  in  time  of  war,  neutralization  of  Switzerland,  placing 
of  protectorate  over  Ionian  Islands,  and  the  determination 
of  precedence  and  dignities  of  the  various  diplomatic  agents 
and  the  states  which  they  represented.  By  the  year  1815 
the  theory  of  the  seventeenth  century  had  been  severely 
tested  by  the  practice  of  the  eighteenth  century,  and  it 
remained  for  the  nineteenth  century  to  profit  by  the  two 
centuries  of  modern  political  experience. 

(c)  The  Peace  of  Westphalia  (1648),  the  Peace  of  Utrecht 
(1713),  and  the  Treaty  of  Vienna  (1815)  are  the  three  cele- 
brated  cases   of   combined   action   of   modern 

1815-1898  ; 

Practical appii-  European  powers.  The  "balance  of  power" 
cation  of  j^jg^    had    gradually   been    supplemented""  by 

"the  concert  of  the  powers"  idea,  which 
would  not  merely  maintain  the  relative  status  quo  of 
"the  balance,"  but  might  enter  upon  a  positive  policy 
of  concerted  action.  The  "Holy  Alliance"  of  1815,  to  pro- 
mote "Justice,  Christian  Charity,  and  Peace,"  ^  was  first 
broken  by  its  originators.  There  was  a  strong  feeling  that 
the  principles  of  international  law  should  be  followed,  how- 
ever, and  this,  the  "  Declaration  of  the  Five  Cabinets,"  No- 
vember 15,  1818,  distinctly  avowed  in  "  their  invariable  reso- 

'  I  Hertslet,  317. 


HISTORICAL  DEVELOPMENT  23 

lution,  never  to  depart,  either  among  themselves,  or  in  their 
relations  with  other  states,  from  the  strictest  observation  of 
the  principles  of  the  Rights  of  Nations."  ^  The  attempt  to  ex- 
tend the  principle  of  intervention  in  favor  of  maintaining  the 
various  sovereigns  on  their  thrones,  and  in  suppression  of  in- 
ternal revolutionary  disturbances  by  foreign  force  was  made  in 
the  ''Circular  of  the  Three  Powers,"  December  8,  1820.2 
Under  many  forms  intervention  was  one  of  the  great  questions 
of  the  nineteenth  century,  and  the  gro\\ing  proximity  and  the 
multiplication  of  relations  of  states  during  that  century  added 
many  complications.^  The  Grecian  War  of  Independence 
(1821-1829)  brought  the  new  principle  of  pacific  blockade 
(1827),  and  at  its  conclusion  the  powers  guaranteed  the 
sovereignty  of  Greece.  The  subjects  of  right  of  search,  for- 
eign enlistment,  Monroe  Doctrine,  freedom  of  commerce  and 
navigation,  expatriation,  extradition,  neutralized  territory, 
ship  canals,  consular  rights,  neutral  rights  and  duties,  arbi- 
tration, reciprocity,  mixed  courts,  international  postage, 
w'eights  and  measures,  trade-marks  and  copyright,  rules  of 
war,  submarine  cables,  and  sphere  of  influence,  which  came 
to  the  front  during  the  nineteenth  century,  indicate  in  a 
measure  the  subject-matter  of  international  negotiation. 
Throughout  the  period  since  1815  the  tendency  has  been 
rather  to  regard  what  is  the  international  practice, 

(d)  At  the  reception  of  the  diplomats  at  the  Foreign  Office, 

St.    Petersburg,    August  12   (24),   1898,  Count    Mouravioff 

handed  to  each  foreign  representative  a  docu- 

1898  to  date:  .         .       ,        ,  .         ,,     ,i       ,        , 

Progress  ment  settmg  forth  at  some  length  the  burdens 

toward  inter-     imposcd  by  War  and  by  the  preparations  for 

national  peace.  ,  .  ,i        i  ^^i     -     .i        j.- 

war  and  expressmg  the  hope  that  the  time 
was  come  "to  put  an  end  to  incessant  armaments."  This 
document  of  Count  Mouravieff  further  declares  that,  "  Filled 
with  this  idea.  His  Majesty  has  been  pleased  to  order  me  to 

1 1  Hertslet,  573.  » Ibid.,  658.  »  Hall,  p.  284. 


24  INTERNATIONAL  LAW 

propose  to  all  the  Governments  whose  representatives  are 
accredited  to  the  Imperial  Court,  the  meeting  of  a  conference 
which  would  have  to  occupy  itself  with  this  grave  problem. 

"This  conference  should  be,  by  the  help  of  God,  a  happy 
presage  for  the  century  which  is  about  to  open.  It  would 
converge  in  one  powerful  focus  the  efforts  of  all  States  which 
are  sincerely  seeking  to  make  the  great  idea  of  universal 
peace  triumph  over  the  elements  of  trouble  and  discord. 

"It  would,  at  the  same  time,  confirm  their  agreement  by 
the  solemn  establishment  of  the  principles  of  justice  and 
right,  upon  which  repose  the  security  of  States  and  the  wel- 
fare of  peoples." 

This  proposition  by  the  Czar  of  Russia  for  an  international 
peace  conference  marks  the  beginning  of  a  new  epoch  for 
international  law  and  international  relations;  an  epoch  in 
which  the  endeavor  is  to  substitute  the  reign  of  reason  for 
that  of  force.  It  was  fully  recognized  that  agreement  upon 
the  law  which  should  hold  among  nations  would  be  the  first 
great  step  toward  peace. 

The  suggested  program  for  the  conference  of  the  powers 
referred  to  (1)  the  limitation  of  armaments;  (2)  prohibition 
of  new  means  of  injuring  an  enemy;  (3)  prohibition  of  new 
explosives  and  of  throwing  projectiles  from  balloons,  etc.; 
(4)  prohibition  of  submarine  boats  and  rams;  (5)  extension  of 
the  provisions  of  the  Geneva  Convention  of  1864  to  naval  war- 
fare; (6)  neutralization  of  vessels  rescuing  shipwrecked;  (7)  re- 
vision of  Declaration  of  Brussels,  1874,  as  to  laws  of  war  on 
land,  and  (8)  matters  of  good  offices,  mediation  and  arbitration. 

This  conference,  representing  twenty-eight  states,  which 
The  First  Peace  '^^  ^^^  known  as  the  First  International  Peace 
Conference  at     Conference  at  The   Hague,  assembled   at  The 

The  Hague.  pj^^^^    ^^   ^j^y    jg^    jggg^  ^^^  j^^j^  j^g   SeSSionS 

at  the  House  in  the  Woods.  It  concluded  its  labors  on 
July  29,  1899. 


HISTORICAL  DEVELOPMENT  25 

This  Conference  formulated  three  conventions  and  three 
declarations. 

Conventions:  (1)  Pacific  settlement  of  international  dis- 
putes, (2)  laws  and  customs  of  war  on  land,  (3)  adaptation 
to  maritime  warfare  of  the  principles  of  the  Geneva  Conven- 
tion of  August  22,  1864. 

Declarations:  (1)  To  prohibit  the  launching  of  projec- 
tiles and  explosives  from  balloons  or  by  other  similar 
new  methods,  (2)  To  prohibit  the  use  of  projectiles,  the 
only  object  of  which  is  the  diffusion  of  asphyxiating  or  dele- 
terious gases.  (3)  To  prohibit  the  use  of  bullets  which  expand 
or  flatten  easily  in  the  human  body,  such  as  bullets  with  a 
hard  envelope,  of  which  the  envelope  does  not  entirely  cover 
the  core,  or  is  pierced  with  incisions. 

The  Conference  adopted  a  resolution  favoring  the  restric- 
tion of  military  charges. 

The  Conference  expressed  ■wishes  (1)  for  the  early  revision 
of  the  Geneva  Convention  of  1864,  (2)  for  the  consideration 
of  the  rights  and  duties  of  neutrals  by  a  subsequent  confer- 
ence, (3)  for  further  study  of  the  limitation  of  the  effectiveness 
of  arms,  (4)  for  the  further  consideration  of  the  limitation  of 
armaments,  (5)  for  reference  of  question  of  inviolability  of 
private  property  at  sea  to  a  subsequent  conference,  (6)  for 
similar  reference  of  question  of  bombardment  of  coast  towns 
and  villages. 

While  the  results  of  this  First  International  Peace  Confer- 
ence were  at  first  regarded  as  insignificant,  their  value  was 
Results  of  the  ^^^^  evident.  The  United  States  led  in  sub- 
First  Peace  mitting  causes  to  the  Court  of  Arbitration,  and 
Conference.  ^Yie  worth  of  the  plans  of  the  Conference  was 
shown  in  the  peaceful  adjustment  of  the  threatened  difficul- 
ties between  Great  Britain  and  Russia  over  the  Dogger 
Bank  affair  during  the  Russo-Japanese  War  in  1904, 

The  suggested  Conference  for  the  revision  of  the  Geneva 


26  INTERNATIONAL  LAW 

Conference  assembled  at  Geneva  June  11,  1906,  and  com- 
pleted its  labors  of  revision  on  July  10,  1906. 

The  value  of  such  conferences  as  that  called  at  The  Hague 
in  1899  was  so  well  established  that  according  to  the  preamble 
of  the  Final  Act,  ''The  Second  International  Peace  Confer- 
ence, proposed  in  the  first  instance  by  the  President  of  the 
United  States  of  America,  having  been  convoked,  on  the 
invitation  of  His  Majesty,  the  Emperor  of  All  the  Russias, 
by  Her  Majesty,  the  Queen  of  the  Netherlands,  assembled 
on  the  15th  June,  1907,  at  The  Hague,  in  the  Hall  of  the 
Knights,  for  the  purpose  of  giving  a  fresh  development  to 
the  humanitarian  principles  which  served  as  a  basis  for  the 
work  of  the  First  Conference  of  1899." 

This  Second  International  Peace  Conference  at  The  Hague, 
representing  forty-four  states,  concluded  thirteen  conven- 
tions and  one  declaration. 
Peace  Confer-  Conventions:  (1)  Pacific  settlement  of  inter- 
ence  at  The  national  disputes,  (2)  limitation  of  employ- 
convwit^ions'.  ^  ment  of  force  for  recovery  of  contract  debts,  (3) 
opening  of  hostilities,  (4)  laws  and  customs  of 
war  on  land,  (5)  rights  and  duties  of  neutral  powers  and  per- 
sons in  case  of  war  on  land,  (6)  status  of  enemy  merchant  ships 
at  outbreak  of  hostilities,  (7)  conversion  of  merchant  ships  into 
war  ships,  (8)  laying  of  automatic  submarine  contact  mines, 
(9)  bombardment  by  naval  forces,  (10)  adaptation  of  prin- 
ciples of  Geneva  Convention  to  naval  war,  (11)  restriction 
of  right  to  capture  in  naval  war,  (12)  international  prize 
court,  (13)  rights  and  duties  of  neutral  powers  in  naval  war. 

Declaration:  Prohibiting  the  discharge  of  projectiles  and 
explosives  from  balloons. 

This  Conference  of  1907  also  pronounced  in  favor  of  the 
principle  of  compulsory  arbitration,  expressed  opinion  on  sev- 
eral other  matters  and  recommended  the  assembling  of  a 
Third  International  Peace  Conference  after  a  period  corre- 


HISTORICAL  DEVELOPMENT  27 

spending  to  that  which  elapsed  between  the  First  and  Second 
Conferences. 

In  1908  Great  Britain  invited  a  conference  of  naval  powers 

to  determine  upon  the  rules  for  war  upon  the  sea  in  order 

that  the  International  Prize  Court  Convention 

The  Interna-      ^^^Uj^  \yQ  ratified  bv  certain  powers  who  were 

tional  Naval  Con-       =>  -^  ^ 

ference  of  1908,  reluctant  to  accept  the  Convention  "  so  long  as 
and  Declaration  yagucness  and  Uncertainty  exist  as  to  the  prin- 

of  London,  1909.       ^  ,       ^  .       ^      ^^  ■,^  ^ 

ciples  which  the  Court,  in  dealing  with  appeals 
brought  before  it,  would  apply  to  questions  of  far-reaching 
importance  affecting  naval  policy  and  practice."  This  Inter- 
national Naval  Conference  met  at  London,  December  4,  1908, 
and  concluded  the  Declaration  of  London  concerning  the 
Laws  of  Naval  War,  February  26,  1909. 

The  period  since  1898  has  been  an  epoch  of  formulation 

of  law  by  international  conventions.     The  contributions  thus 

made  have  often  removed  uncertainties  which 

Contributions        „  ,  .,     ,      ,  ,•  i-r-     i 

of  this  period     formerly  prevailed,   have  sometimes    modihed 
to  international  existing  law,  have  set  forth  principles  to  govern 
^^"  new  conditions  and  in  general  have  recognized 

the  principle  that  establishment  of  equitable  law  is  an  essen- 
tial to  the  realization  of  peace. 

Note. — The  more  important  texts  of  these  various  con- 
ferences are  given  in  the  appendices,  while  the  more  signifi- 
cant articles  of  the  several  conventions  are  inserted  in  sections 
of  the  text  upon  which  they  bear.i 

13.     Influence  of  the  United  States 

The  United  States  of  America  for  many  years  after  1776 
occupied  a  position  to  a  considerable  extent  apart  from 
European  influences.  It  developed,  therefore,  ideas  in  re- 
gard to  international  relations  which  showed  the  influence 

1  The  full  texts  of  the  conventions,  etc.,  of  the  Peace  Conferences  at  The 
Hague  may  be  found  in  Scott's  "  Texts  of  the  Peace  Conferences  at  The 
Hague  1899  and  1907";     Higgins,  "  The  Hague  Peace  Conferences." 


28  INTERNATIONAL  LAW 

of  general  principles  rather  than  the  influence  of  national 
policy. 

(a)  The  regulations  in  regard  to  neutrality  issued  in  1793 
set  forth  the  principles  which  have  subsequently  become  gen- 
erally recognized.     Of  this  contribution  toward 
of  1793  in  re-     the  development  of  international  law  Hall  says : 
gardto  ''The  policy  of  the  United  States  in  1793  con- 

neu  ra  i  y.  stitutes  an  epoch  in  the  development  of  the 
usages  of  neutrality.  There  can  be  no  doubt  that  it  was 
intended  and  believed  to  give  effect  to  the  obligations  then 
incumbent  upon  neutrals.  But  it  represented  by  far  the 
most  advanced  existing  opinions  as  to  what  those  obligations 
were;  and  in  some  points  it  even  went  further  than  authorita- 
tive international  custom  has  up  to  the  present  time  advanced. 
In  the  main,  however,  it  is  identical  with  the  standard  of 
conduct  which  is  now  adopted  by  the  community  of  nations."  ^ 

(h)  The  United  States  has  also  consistently  advocated 
the  freedom  of  commerce  and  navigation.  Many  claims  for 
Freedom  of  exclusive  rights  over  rivers,  gulfs,  and  other 
commerce  and  bodies  of  water  werc  resisted  by  the  United 
navigation.  States  from  the  time  of  the  acquisition  of  state- 
hood. The  United  States  early  insisted  upon  tliB  freedom 
of  navigation  of  the  Scheldt.  In  the  definitive  treaty  of 
peace  with  Great  Britain  in  1783,  Article  8,  it  was  provided 
that  "  The  navigation  of  the  River  Mississippi  from  its  source 
to  the  ocean,  shall  forever  remain  free  and  open  to  the  Sub- 
jects of  Great  Britain,  and  the  Citizens  of  the  United  States." 
The  negotiations  of  the  United  States  for  securing  freedom 
of  river  navigation  were  based  upon  the  natural  right,  but 
for  many  years  the  arguments  of  the  representatives  received 
slight  consideration.  The  Sound  Dues,  which  Denmark  had 
for  centuries  collected  from  vessels  passing  between  the  North 
and  the  Baltic  seas  were  a  heavy  burden  on  commerce. 
«  Hall,  "Int.  Law,"  5th  ed.,  p.  593. 


HISTORICAL  DEVELOPMENT  29 

Henry  Wheaton,  subsequently  to  become  one  of  the  fore- 
most authorities  in  international  law,  while  United  States 
Minister  to  Denmark  from  1827  to  1835,  reported  to  the 
Department  of  State  upon  the  subject  of  these  dues.  The 
United  States  soon  maintained  that ''  Denmark  cannot  lay 
claim  to  these  duties  upon  any  principle  either  of  nature  or  of 
the  law  of  nations  nor  from  any  other  reason  than  that  of  anti- 
quated custom."  While  maintaining  that  Denmark  had  no 
right  to  collect  tolls  because  of  her  geographical  position,  the 
United  States  did  admit  that  a  reasonable  return  might 
justly  be  made  "  for  the  improvement  and  safety  of  the  navi- 
gation of  the  Sound  or  Belts."  The  United  States,  by  the 
treaty  of  April  11,  1857,  paid  $393,011  in  consideration  of 
Denmark's  agreement  to  keep  up  lights,  buoys,  and  pilot 
establishments.  The  United  States  has  also  always  ques- 
tioned the  right  of  any  state  or  states  to  forbid  access  to  the 
Black  Sea.  The  United  States  also  protested  against  the 
restrictions  placed  upon  the  navigation  of  some  of  the  South 
American  rivers.  The  principle  of  freedom  of  navigation 
for  which  the  United  States  had  so  often  contended  was 
fully  recognized  in  the  Kongo  in  the  latter  part  of  the  nine- 
teenth century. 

Open-door  (^)  '^^^   United   States    has  also  uniformly 

policy  in  the  striven  for  the  largest  possible  freedom  of  trade 
Far  East  routes  as  in  the  maintenance  of  the  policy  of  the 

"open  door"  in  the  Far  East. 

(d)  It  has  protected  its  citizens  in  their  legitimate  rights 

and  has  opposed  oppression  and  arbitrary  measures.    When 

Perdicaris,    an   American   citizen   in    Morocco, 

Protection  of  i        .       i        /.    i  •       r        i  i        i         t 

citizens  in         was   deprived   of   his   freedom    by  the  bandit 
their  legitimate  Raisuli   in   1904,  Secretary  Hay,  after  a  rea- 
sonable   time,    informed    Morocco   that   "  this 
Government  wants  Perdicaris  alive  or  Raisuli  dead."  ^ 

»  U.  S.  For.  Rel.,  1904,  p.  508. 


30  INTERNATIONAL  LAW 

(e)  The  United  States  has  also  contributed  toward  the 
establishing  of  the  laws  of  war  both  upon  the  land  and  upon 

Contributions  to  ^^^  ^^^-  '^^^  Instructions  for  the  Government  of 
establishment    Armies  of  the  United  States  in  the  Field,  pre- 

of  laws  of  war.    ^^^^^  y^^  j^^    Lj^^^^j.  ^^  jggg^  j^^^^  g^^.^^^  ^g  ^^le 

basis  for  the  modern  rules  for  warfare  on  land.  The  United 
States  has  advocated  some  of  the  most  advanced  positions 
upon  the  customs  of  war  upon  the  sea.  At  the  Hague 
Convention  of  1907  an  earnest  attempt  was  made  to  secure 
the  exemption  from  capture  of  private  property  at  sea,  in 
accord  with  the  traditional  attitude  of  the  United  States. 
The  Supreme  Court  in  1S99  said:  ''It  is,  as  we  think,  histor- 
ically accurate  to  say  that  this  Government  has  always 
been,  in  its  views,  among  the  most  advanced  of  the  gov- 
ernments of  the  world  in  favor  of  mitigating,  as  to  all  non- 
combatants,  the  hardships  and  horrors  of  war."  ^ 

(/)   In  the  United  States  there  have  always  been  many  advo- 
cates of  the  peaceful  methods  of  settlement  of  international 

disputes.  Such  method  was  provided  for  the 
peaxefui'^settie-  Settlement  of  differences  among  the  states  of  the 
ment  of  inter-  United  States  by  the  Articles  of  Confederation  in 
nationa  1778.  Commissions  were  frequently  appointed  by 

the  United  States  for  settlement  of  difficulties 
with  foreign  states.  Specific  provision  was  made  in  a  treaty 
with  Tripoli  in  1 796,  that  in  case  of  dispute  arising  under  the 
treaty,  neither  party  should  appeal  to  arms,  *'nor  shall  war 
be  declared  on  any  pretext  whatever,"  but  a  year  shall  be 
given  for  the  adjustment  of  the  difficulty,  "during  which 
time  no  act  of  hostility  shall  be  permitted  by  either  party." 
This  provision  is  renewed  in  Article  15  of  the  treaty  of  1805 
between  the  United  States  and  Tri{)oli,  which  is  still  in  force. 
Many  of  the  leading  men  of  the  United  States  have  been  the 
earnest   advocates   of   arbitral   procedure.     At   the   various 

I  The  Buena  Ventura,  175  U.  S.,  384. 


HISTORICAL  DEVELOPMENT  31 

strictly  American  conferences,  and  at  The  Hague  in  1899 
and  in  1907,  the  United  States  representatives  gave  cordial 
support  to  the  extension  of  arbitration  to  the  fullest  practi- 
cable extent. 

(g)  The  isolation  of  the  United  States  during  the  early 

period  of  its  existence  made  it  possible  to  pay  more  regard  to 

principle  because  less  influenced  by  policy.  These 

Isolation  of  the    '  ^  J  t^        J 

United  States  principles  showed  the  general  attitude  of  the 
and  its  United  States  and  have  had  increasing  weight 

in  the  councils  of  the  nations  as  the  United 
States  has  gained  in  power.  The  advocacy  of  the  principle 
of  freedom  of  navigation  and  commerce,  the  observance  of 
neutrality,  the  establishment  of  just  rules  for  war,  and  the 
support  of  arbitration  as  a  means  of  settling  international 
differences  show  the  direction  in  which  the  United  States  has 
influenced  the  development  of  international  law  in  the  re- 
markable progress  of  recent  years. 

14.     Writers 

Among  the  writers  upon  subjects  connected  with  inter- 
national law  before  the  days  of  Grotius  the  most  prominent 
are  Victoria  (1480-1546),  Ayala  (154S-1584),  Suarez  (1548- 
1617),  and  Gentilis  (1552-1608).  WTiile  in  many  respects 
their  contributions  to  the  science  were  valuable,  the  work  of 
Grotius  stands  out  preeminent  among  all  the  early  writers. 

(a)  Hugo  Grotius  (1583-1645),  the  scholar,  jurist  and 
statesman,  was  born  in  Delft,  April  10, 1583.  Of  good  family. 
Life  and  work  ^^  ^'^^  extremely  precocious,  acquiring  prodigious 
of  Hugo  Grotius  learning  in  many  branches.  At  fifteen  he  went 
'■  with  a  special  embassy  to  France;  at  twenty  he 
was  historiogi-apher  to  the  United  Provinces,  and  at  twenty- 
five  advocate-general  of  the  fisc  of  Holland  and  Zealand.  The 
next  year  he  married  Mary  van  Riegesberg,  a  worthy  helpmeet, 
and  at  thirty  he  became  pensionary  of  the  city  of  Rotterdam 


32  INTERNATIONAL  LAW 

as  well  as  one  of  a  deputation  to  England  to  settle  maritime 
disputes.  In  1619,  however,  on  account  of  his  active  part 
in  religious  controversies,  he  was  sentenced  to  imprisonment 
for  life,  and  his  property  was  confiscated.  Two  years  later, 
through  the  cleverness  of  his  wife,  he  escaped  to  Paris,  where 
he  spent  days  of  adversity  and  study.  In  1625  "De  Jure 
Belli  ac  Pacis"  was  published;  it  brought  no  profit,  but  im- 
mediate and  lasting  fame.  Disappointed  in  his  hope  to 
return  to  permanent  residence  in  Holland,  he  was  ap- 
pointed Swedish  ambassador  at  the  French  Court  in  1635. 
Declining  further  service  in  1645,  he  retired,  honored  in  all 
lands.  He  died  from  the  effects  of  hardships  encountered 
in  the  journey  to  his  native  land,  at  Rostock,  August  28, 
1645.1 

Grotius's  "De  Jure  Belli  ac  Pacis"  (1625)  is  an  attempt  to 
bring  into  a  systematic  treatment  those  principles  which  have 
since  become  known  as  international  law.  Rich  in  quotations, 
it  touches  upon  many  other  subjects,  and  its  broad  philo- 
sophical basis  gives  it  permanent  value.  Conditions  in  Europe 
at  the  time  when  the  work  appeared  gave  it  immediate  and 
powerful  influence  in  determining  the  course  of  modern  polit- 
ical history.  Of  course,  many  of  the  principles  expounded 
by  Grotius  are  no  longer  applicable,  and  many  new  principles, 
such  as  the  doctrine  of  neutrality,  have  gained  recognition. 
Nevertheless,  upon  the  foundation  laid  by  Grotius,  the  mod- 
ern science  has  been  largely  built. 

(6)  ZoucH  (1590-1660),  the  successor  of  Gentilis,  as  pro- 
fessor of  Roman  Law  at  Oxford,  while  a  follower  of  Grotius  in 
other  author-  matter  and  method,  deserves  mention  for  his  dis- 
ities  on  inter-  tinction  between  jus  gentium  and  that  law  to 
national  law.  ^\^[q\^  \^q  gives  the  name  jus  inter  gentes,  in  the 
French  translation  called  Droit  entre  les  Gens,  later  Droit  Inter- 
national, and  in  the  English,  Law  of  Nations,  and  since  the 
»  Walker,  "Hist.  Law  of  Nations,"  pp.  283,  336. 


HISTORICAL  DEVELOPMENT  33 

latter  part  of  the  eighteenth  century  when  Bentham  led  the 
way,  International  Law. 

PuFENDORF  (1632-1694),  in  his  voluminous  works  in  gen- 
eral follows  Grotius. 

Toward  the  end  of  the  seventeenth  century,  a  school  oppos- 
ing the  earlier  writers  arose.  This  school,  headed  by  Rachel 
(1628-1691),  assigned  a  stronger  authority  to  the  principles 
of  international  law,  and  gave  more  attention  to  usage, 
whether  tacitly  admitted  or  plainly  expressed,  and  to  com- 
pacts. 

Bynkershoek  (1673-1743),  limiting  his  work  to  particular 
subjects  in  international  law,  gave  to  the  eighteenth  century 
several  authoritative  treatises  which  are  justly  regarded  as 
of  the  highest  worth.  He  especially  defined  the  laws  of 
maritime  commerce  between  neutrals  and  belligerents  (De 
Dominio  Maris,  1702),  gave  an  outline  of  ambassadorial  rights 
and  privileges  (De  Foro  Legatorum,  1721),  besides  contribut- 
ing to  a  much  clearer  understanding  of  the  general  subject 
of  international  law. 

Wolff  (1679-1754),  published  in  1749  his  "Jus  Gentium." 
This  bases  international  law  on  a  sort  of  state  universal, 
civitas  maxima,  made  up  of  the  states  of  the  world  in  their 
capacity  as  voluntarily  recognizing  a  natural  law. 

Vattel  (1714-1767),  an  ardent  admirer  of  Wolff,  pub- 
lished in  1758  his  "Law  of  Nations,"  which  he  based  upon 
the  work  of  Wolff.  This  work  of  Vattel  was  clear  and  logi- 
cal and  gained  an  immediate  and  wide  influence,  far  sur- 
passing that  of  his  master. 

MosER  (1701-1786),  brings  into  the  science  the  positive 
method  which  Rachel  had  hinted  at  in  his  work  a  hundred 
years  before.  He  narrows  his  view  to  the  principles  under- 
lying the  cases  of  his  own  day,  and  would  build  the  science 
on  recent  precedents.  The  method  thus  introduced  has 
strongly  influenced  succeeding  writers. 


34  INTERNATIONAL  LAW 

G.  F.  DE  Martens  (1756-1801),  combines  in  a  measure 
the  method  of  Vattel  with  the  positive  method  of  Moser 
in  his  "Precis  du  Droit  des  Gens  Moderne  de  I'Europe," 
1789.     This  treatise  has  been  a  recognized  authority. 

Many  special  and  general  works  appeared  in  the  later 
years  of  the  eighteenth  century  and  early  years  of  the  nine- 
teenth. 

Wheaton  (1785-1848),  the  foremost  American  writer  on 
international  law,  published  in  1836  his  "Elements  of  Inter- 
national Law,"  which  has  long  been  recognized  as  a  standard 
throughout  the  world. 

Beside  the  great  work  of  Wheaton  justly  stands  Philli- 
more's  "Commentaries  upon  International  Law." 

Many  other  works  of  highest  merit  appeared  during  the 
latter  half  of  the  nineteenth  century,  such  as  those  of  Blunt- 
schli,  Travers  Twiss,  Calvo,  Wharton,  Pradier-Fodere,  F.  de 
Martens,  and  the  late  William  Edward  Hall.  There  are  also 
many  living  writers  whose  contributions  are  of  greatest 
worth.  Mention  of  the  leading  authors  and  their  works  is 
made  in  the  "  Bibliography." 


OUTLINE  OF  CHAPTER  IV 
SOURCES   OF   INTERNATIONAL  LAW 

15.  PRACTICE   AND   USAGE. 

16.  PRECEDENT   AND    DECISIONS. 

(a)  Prize  and  admiralty  courts  decisions. 

(b)  Decisions  of  domestic  courts. 

(c)  Decisions  of  courts  of  arbitration. 

17.  TREATIES  AND  STATE  PAPERS. 

(a)  Laying  down  new  rules  or  outlining  operation  of  old  rules. 

(b)  Enunciation  of  established  rules. 

(c)  Agreement  as  to  rules  to  be  held  mutually  binding. 

(d)  Interstate  compacts. 

18.  TEXT   WRITERS. 

19.  DIPLOMATIC  PAPERS. 


36 


CHAPTER  IV 
SOURCES  OF  INTERNATIONAL  LAW 

15.     Practice  and  Usage 

If  for  a  time  international  intercourse  follows  certain 
methods,  these  methods  are  regarded  as  binding  in  later 
intercourse,  and  departure  from  this  procedure  is  held  a  vio- 
lation of  international  right.  That  collection  of  customs 
known  as  ''The  Law  Merchant"  is  an  example  of  a  source 
of  this  class.  Of  this  it  has  been  said :  "  Gradually,  the  usages 
of  merchants  hardened  into  a  cosmopolitan  law,  often  at 
positive  variance  with  the  principles  of  local  law,  but  none 
the  less  acquiesced  in  for  mercantile  transactions,  and  enforced 
by  tribunals  of  commanding  eminence  and  world-wide  repu- 
tation, such  as  the  courts  of  the  Hanseatic  League  and  the 
Parloir  aux  Bourgeois  at  Paris."  ^ 

Sir  W.  Scott,  in  the  case  of  the  "Santa  Cruz,"  1798,  said 
"Courts  of  Admiralty  have  a  law  and  a  usage  on  which  they 
proceed,  from  habit  and  ancient  practice."  2 

16.     Precedent  and  Decisions 

The  domestic  courts  of  those  states  within  the  family  of 
nations,  ma}^  by  their  decisions  furnish  precedents  which 
become  the  basis  of  international  practice. 

(a)  Prize  and  admiralty  courts  decisions  form  in  them- 
selves a  large  body  of  law.  Jurisdiction  in  admiralty  and 
maritime  causes  in  the  United  States  rests  in  the  District 

*  Jenks,  "  Law  and  Politics  in  the  Middle  Ages,"  p.  30. 
»  The  Santa  Cruz,  1  C.  Rob.,  49,  61. 

37 

276609 


38  INTERNATIONAL  LAW 

Courts,  the  Circuit  Courts  and  the  Supreme  Court.  The 
District  Courts  have  original  jurisdiction  in  civil  causes  of 
Prize  and  ad-  admiralty  and  concurrent  jurisdiction  with  the 
miraity  courts  Circuit  and  State  Courts  in  suit  of  an  alien, 
decisions.  because  of  violation  of  international  law  or  treaty 

of  United  States.  The  District  Court  also  has  full  prize  court 
powers.  Appeals  from  prize  courts  decisions  go  directly  to 
the  Supreme  Court  for  final  judgment;  appeals  from  admiralty 
decisions  go  to  the  Circuit  Court  for  final  judgment. ^  The 
prize  courts  of  other  powers  vary  in  jurisdiction,  nature,  and 
procedure.  British  and  American  courts  rely  more  particu- 
larly upon  precedents,  while  the  Continental  courts  follow 
more  distinctly  the  general  principles  laid  down  in  codes 
and  text  writers,  and  place  less  reliance  upon  previous  inter- 
pretation of  these  principles  as  shown  in  court  decisions. 2 
Whatever  the  method  of  the  prize  court,  its  decision,  if  legally 
rendered,  stands  as  valid  in  all  states. ^ 

Provision  was  made  at  the  Second  Hague  Conference  in 
1907  for  the  establishment  of  an  international  prize  court. 

(6)  The  decisions  of  domestic  courts  upon  such  matters 
as   extradition,^   diplomatic   privileges,  piracy, 

do^mestic^courts  ^^^-f  ^^^^  ^^  become  a  source  of  international 
law.     In  the  United  States  the  Supreme  Court 
has  original  jurisdiction  "in  all  cases  affecting  ambassadors, 
other  public  ministers,  and  consuls."  ^ 

(c)  The  decisions  of  courts  of  arbitration  and  other  mixed 
courts  are  usually  upon  broad  principles.  Some  of  the 
principles  involved  may  become  established  precedents,  yet 
the  tendency  to  render  a  decision,  which  by  a  compromise 
may  be  measurably  acceptable  to  both  parties,  may  lessen  the 

'  Act  of  Congress,  March  3,  189L     26  U.  S.  Sts.  at  Large,  826. 
2  Lawrence,  §  64.  '  Bolton  v.  Gladstone,  5  East,  155,  160. 

•  United  States  v.  Rauscher,  1886,  119  U.  S.,  407. 

» United  States  Constitution,  Art.  Ill,  §  2.  For  English  view,  see 
Walker,  p.  46,  who  quotes  3  Burr,  1480. 


SOURCES  OF  INTERNATIONAL  LAW  39 

value  of  the  decision  as  a  precedent.  As  arbitration  has  hith- 
erto been  voluntary,  there  was  generally  a  consensus  upon 
Decisions  of  certain  points  which  might  become  recognized 
courts  of  precedents,  even  though  the  decision  rendered 

arbitration.  might  not  become  a  precedent.  The  principles 
upon  which  the  court  of  arbitration  bases  its  decision,  more 
often  than  the  decision  itself,  furnishes  material  valuable  for 
international  law.  The  growth  of  the  practice  of  arbitration 
of  disputes  is  an  indication  of  the  general  recognition  of 
mutual  confidence  between  states. 

17.    Treaties  and  State  Papers 

Treaties  and  state  papers  of  whatever  form  ^  indicate  the 
state  of  opinion,  at  a  given  time,  in  regard  to  the  matters  of 
which  they  speak.  Since  they  are  binding  upon  the  parties 
to  them,  treaties  may  be  regarded  as  evidence  of  what  the 
states,  bound  by  their  terms,  accept  as  law.  When  the  same 
terms  are  generally  accepted  among  nations,  treaties  become 
a  valuable  evidence  of  concrete  facts  of  practice  and  proper 
sources  of  international  law.  The  principles  may  be  so  well 
established  by  successive  treaties  as  to  need  no  further  treaty 
specification.  Treaties  and  state  papers,  however,  vary 
greatly  in  value  as  sources  of  international  law. 

(a)  Treaties  and  state  papers  may  lay  do\\Ti  new  rules  or 
outline  the  operation  of  old  rules.  As  instances  of  those 
■      .     ^  laying  down  new  rules  may  be  taken  several  of 

Laying  down         ,      tt  r^ 

new  rules  or  the  Hague  Conventions  of  1907,  the  Interna- 
outiining  opera-  tional  Radiotelegraphic  Convention  of  Novem- 

tion  of  old  rules.  ,         n    -,    r^^      t       ^  /-. 

ber  3,  1906,  the  Geneva  Convention  of  1864;  of 
those  outlining  and  determining  the  operation  of  old  rules, 
there  are  many  instances;  the  most  numerous  of  these  are 
in  the  treaties  in  regard  to  maritime  affairs  and  consuls. 

*  Declarations,  protocols,  conventions,  proclamations,  notes,  etc. 


40  INTERNATIONAL  LAW 

(6)  Treaties  and  state  papers  may  enunciate  established 
rules  as  understood  by  the  parties  to  the  treaty.  The  Decla- 
Enunciation  of  nation  of  the  Conference  of  London,  January  17, 
established  1871,  to  which  the  major  European  states  were 
^^^^'  parties,   announces  that  the  signatory  powers 

"recognize  that  it  is  an  essential  principle  of  the  Law  of 
Nations  that  no  Power  can  liberate  itself  from  the  engage- 
ments of  a  Treaty,  nor  modify  the  stipulations  thereof,  unless 
with  the  consent  of  the  Contracting  Powers  by  means  of  an 
amicable  agreement."  ^ 

(c)  Treaties  and  state  papers  may  agree  as  to  rules  which 
shall  be  held  as  binding  upon  the  parties  to  the  treaty  or 

paper.     The  Declaration  of  Paris,  1856,  agreed 

Agreement  as      '^  .  .      .    ,  ,        ,  »  7  . 

to  rules  to  be  ^s  to  certain  principles  and  rules  of  maritime 
held  mutually  international  law,  which  should  be  held  as  bind- 
ing the  signatory  powers  or  those  later  agreeing 
to  its  provisions.  This  Declaration  may  be  held  as  generally 
binding.  The  United  States,  by  Proclamation  of  April  26, 
1898,  announced  its  adherence  to  the  principles  of  the  Decla- 
ration, and  during  the  same  year  Spain  acquiesced  in  its 
principles. 

(d)  Most  treaties  and  state  papers,  however,  deal  with 
Interstate  matters  of  interstate  politics,  and  are  not  in 
compacts.  ^^y  ggi^ge  sources  of  international  law.  They 
are  in  most  cases  little  more  than  interstate  compacts. 

18.     Text  Writers 

During  the  seventeenth  and  the  first  half  of  the  eighteenth 
century,  the  writings  of  the  great  publicists  were  regarded 
as  the  highest  source  of  authority  upon  matters  now  in  the 
domain  of  international  law.  These  writings  not  only  laid 
down  the  principles  which  should  govern  cases  similar  to  those 
which  had  arisen,  but  from  the  broad  basis  given  the  law  of 

» III  Hertslet,  1904. 


SOURCES   OF  INTERNATIONAL  LAW  41 

nations  deduced  the  principles  for  such  cases  as  might  arise. 
This  latter  method  was  especially  common  among  the  early- 
writers,  such  as  Victoria  and  Suarez  in  the  sixteenth  century. 
The  philosophical  school,  from  Grotius  to  the  middle  of  the 
eighteenth  century,  continued  to  propound  the  principles 
which  should  govern  in  supposed  cases,  should  they  ever 
actually  arise.  Statesmen  looked  to  these  treatises  as  authori- 
tative sources.  The  prolific  Moser,  in  the  middle  of  the  eight- 
eenth century,  made  the  historical  method  more  prominent 
by  giving  less  attention  to  the  natural  law,  and  by  founding 
his  system  on  usage  and  treaties.  Bynkershoek  (1673- 
1743)  had  anticipated  him  in  this  method  in  special  lines, 
but  Moser  extended  the  system  and  made  it  most  ample. 
Succeeding  writers  mingled  the  two  systems,  inclining  to 
the  one  or  to  the  other.  In  the  early  days  of  the  modern  period 
the  writers  upon  the  law  of  nations  outlined  the  course  which 
states  should  pursue  in  their  relations  to  one  another.  In 
the  later  days  of  the  modern  period,  the  writers  upon  the  law 
of  nations,  while  sometimes  discussing  problems  before  they 
arise,  in  general  attempt  to  expound  the  rules  and  prin- 
ciples which  have  entered  already  into  interstate  action. 
The  works  of  the  text  writers,  from  Grotius  to  the  present, 
must  be  regarded  as  sources  of  highest  value. 

The  Supreme  Court  of  the  United  States  in  case  of  the 
Paquete  Habana  in  1900  referring  to  the  determination  of 
questions  involving  international  law,  said:  ''For  this 
purpose,  where  there  is  no  treaty,  and  no  controlling  ex- 
ecutive or  legislative  act  or  judicial  decision,  resort  must  be 
had  to  the  customs  and  usages  of  civilized  nations;  and,  as 
evidence  of  these,  to  the  works  of  jurists  and  commentators, 
who  by  years  of  labor,  research  and  experience,  have  made 
themselves  peculiarly  well  acquainted  with  the  subjects  of 
which  they  treat.  Such  works  are  resorted  to  by  judicial 
tribunals,  not  for  the  speculations  of  their  authors  concern- 


42  INTERNATIONAL  LAW 

ing  what  the  law  ought  to  be,  but  for  trustworthy  evidence 
of  what  the  law  really  is."  ^ 

19.     Diplomatic  Papers 

The  diplomatic  papers,  as  distinct  from  the  state  papers 
to  which  more  than  one  state  becomes  a  party,  are  simply 
papers  issued  by  a  state  for  the  guidance  of  its  own  represen- 
tatives in  international  intercourse.  The  papers  are  some- 
times named  state  papers  or  included  among  the  papers  to 
which  other  states  are  parties, — in  the  United  States,  in  the 
series  known  as  "Diplomatic  Correspondence,  1861-1868," 
and  "Foreign  Relations"  since  1870;  and  in  Great  Britain 
in  the  "  British  and  Foreign  State  Papers." 

These  papers,  showing  the  opinions  of  various  states  from 
time  to  time  upon  certain  subjects  which  may  not  come  up 
for  formal  state  action,  afford  a  valuable  source  of  informa- 
tion upon  the  attitude  of  states  toward  questions  still  formally 
unsettled.  The  simple  expression  to  state  agents  in  the  way 
of  instructions  or  information  as  to  the  position  of  the  state 
on  a  given  matter  may,  if  continued  and  long  accepted,  give 
to  the  principle  involved  the  force  of  international  sanction. 
This  was  almost  the  case  in  the  so-called  Monroe  Doctrine. 2 
In  these  papers  may  often  be  found  an  indication  of  the  line 
which  the  principles  of  international  law  will  subsequently 
follow,  and  a  general  consensus  by  several  states  in  diplomatic 
instructions  may  be  considered  strong  evidence  of  what  the 
law  is  on  a  given  point. 

1  The  Paquete  Habana  and  the  Lola,  175  U.  S.,  677. 

^  In  signing  the  Hague  Convention  for  the  Pacific  Settlement  of  Inter- 
national Disputes,  the  representatives  of  the  United  States  made  the 
reservation  that,  "Nothing  contained  in  this  convention  shall  be  so  con- 
strued as  to  require  the  United  States  of  America  to  depart  from  its  tra- 
ditional policy  of  not  intruding  upon,  interfering  with,  or  entangling  itself 
in  the  political  questions  of  policy  or  internal  administration  of  any  foreign 
state;  nor  shall  anything  contained  in  the  said  convention  be  construed 
to  imply  a  relinquishment  by  the  United  States  of  America  of  its  tra- 
ditional attitude  toward  purely  American  questions." 


PART  TWO 

PERSONS  IN   INTERNATIONAL  LAW 


OUTLINE  OF  CHAPTER  V 
STATES 

20.  DEFINITION   OF   A   STATE. 

(a)  Must  be  political  unity. 

(b)  Must  possess  sovereignty, 

21.  CONDITIONS   OF   STATE   EXISTENCE. 

(a)  Moral. 

(b)  Physical. 

(c)  Communal. 

(d)  External  relationship. 

22.  RECOGNITION    OF   NEW    STATES. 

(a)  De  facto  existence  of  a  state. 

(b)  Varying  circiunstances  of  recognition. 

(1)  By  division. 

(2)  By  union. 

(3)  By  admission  of  old  states. 

(4)  By  admission  of  former  barbarous  commimities. 

(5)  Individual  and  collective  recognition. 

(6)  Example  of  an  act  of  dissolution. 

(c)  Acts  constituting  recognition. 

(d)  Premature  recognition. 

(e)  Certain  political  conditions  requisite  for  recognition. 

(f)  Recognition  irrevocable. 

(g)  Consequences  of  recognition. 

(1)  For  the  recognizing  state. 

(2)  For  the  recognized  state. 

(3)  For  the  parent  state. 

(4)  For  other  states. 


44 


CHAPTER  V 
STATES 

20.     Definition  of  a  State 

A  State  is  a  sovereign  political  unity.  It  is  of  the  rela- 
tions of  states  that  public  international  law  mainly  treats. 
From  the  nature  of  its  subject-matter  it  is  a  juridical,  histor- 
ical, and  philosophical  science. ^  These  sovereign  political 
unities  may  vary  greatly.     The  unity,  however, 

(a)  Must  be  political,  i.e.  organized  for  public  ends  as 
Must  be  understood   in  the  family  of  nations  and  not 

political  and  for  private  ends  as  in  the  case  of  a  corn- 
sovereign,  mercial  company,  a  band  of  pirates,  or  a 
religious  organization. 

(6)  Must  possess  sovereignty,  i.e.  supreme  political  power 
beyond  and  above  which  there  is  no  political  power.  It  is 
not  inconsistent  with  sovereignty,  that  a  state  should  vol- 
untarily take  upon  itself  obligations  to  other  states,  even 
though  the  obligations  be  assumed  under  stress  of  war  or 
fear  of  evil. 

21.     Conditions  of  State  Existence 

From  the  nature  of  the  state  as  a  sovereign  political  unity 
it  must  be  self-sufficient,  and  certain  conditions  are  therefore 
generally  recognized  as  necessary  for  its  existence  from  the 
standpoint  of  international  law.^ 

*  Holtzendorff,  "Introduction  droit  public,"  44. 

*  Hall,  p.  17;  I  Rivier,  §  3,  9,  I. 

45 


46  INTERNATIONAL  LAW 

(a)  A  state  must  be  to  a  degree  moral.    In  order  that  a 

state  may  be  regarded  as  within  the  ''family  of  nations,"  and 

within  the  pale  of    international  law,  it  must 

Essential  con-  .  .  ' 

ditions:  moral,    recognize  the  rights  of  other  states  and  acqui- 

physicai,  qqqq  [^  j^g  obligations  toward  them.     This   is 

considered  a  moral  condition  of  state  existence. 

(&)  A  state   must  also   possess   those   physical  resources 

which  enable  it  to  exist  as  territory,  etc. 

(c)  A  state  must  possess  a  body  of  men  in  such  communal 
relationship  as  to  warrant  the  belief  in  the  continued  ex- 
istence of  the  unity.  Each  state  may  be  its  own  judge  as  to 
the  time  when  this  relationship  is  established  in  a  given  body 
of  men,  and  the  recognition  of  the  new  state  is  fitting. 

That  such  conditions  are  recognized  as  prerequisites  of 
state  existence  from  the  point  of  view  of  international  law 
is  not  due  to  the  essential  nature  of  the  state,  but  rather  to 
the  course  of  development  of  international  law;  as  Hall  says: 
''The  degree  to  which  the  doctrines  of  international  law  are 
based  upon  the  possession  of  land  must  in  the  main  be 
attributed  to  the  association  of  rights  of  sovereignty  or  su- 
preme control  over  human  beings  with  that  of  territorial 
property  in  the  minds  of  jurists  at  the  period  when  the 
foundations  of  international  law  were  being  laid."  ^ 

(d)  The  external  relationship  of  the  state  rather  than  the 
internal  nature  is  the  subject  of  consideration  in  international 

law.  For  local  law,  a  community  may  enter 
relationship.      upon  state  existence  long  before  this  existence 

is  recognized  by  other  nations,  as  in  the  case  of 
Switzerland  before  1648.  Until  recognition  by  other  states 
of  its  existence  becomes  general,  a  new  state  cannot  acquire 
full  status  in  international  law;  and  this  recognition  is  con- 
ditioned by  the  policy  of  the  recognizing  states. 

» Hall,  p.  19. 


STATES  47 

22.     Recognition  of  New  States 

(a)  State  existence  de  facto  is  not  a  question  of  inter- 
national law  but  depends  upon  the  existence  of  a  sovereign 
De  facto  ex-  political  Unity  with  the  attributes  which  nec- 
istence  of  a  essarUy  appertain  to  it.  This  de  facto  exist- 
state.  gj^pg  jg  j^Q^  dependent  upon  the  will   of   any 

other  state  or  states.^  The  entrance  of  the  state  into  the 
international  statehood,  however,  depends  entirely  upon  the 
recognition  by  those  states  already  within  this  circle.  What- 
ever advantages  membership  in  this  circle  may  confer,  and 
whatever  duties  it  may  impose,  do  not  fall  upon  the 
new  state  until  its  existence  is  generally  recognized  by 
the  states  already  within  the  international  circle.  These 
advantages  and  duties,  as  between  the  recognizing  and 
recognized  state,  immediately  follow  recognition  but  do 
not  necessarily  extend  to  other  states  than  those  actu- 
ally parties  to  the  recognition.  The  basis  of  this  family 
of  nations  or  international  circle  which  admits  other  states 
to  membership  is  historical,  resting  on  the  polity  of  the 
older  European  states.  These  states,  through  the  relations 
into  which  they  were  brought  by  reason  of  proximity  and 
intercourse,  developed  among  themselves  a  system  of  action 

'  The  internal  acts  of  a  de  facto  state  are  valid,  whatever  the  attitude  of 
the  international  circle.  As  an  example,  in  1777,  during  the  Revolu- 
tionary War,  the  British  governor  of  Florida  made  a  grant  of  land  in  what 
is  now  the  southern  part  of  the  United  States.  Fifty  years  later  a  de- 
scendant of  the  grantee  laid  claim  to  the  land,  but  the  Supreme  Court  of 
the  United  States  declared:  "It  has  never  been  admitted  by  the  United 
States  that  they  acquired  anything  by  way  of  cession  from  Great  Britain 
by  that  treaty  [of  Peace,  1783].  It  has  been  viewed  only  as  a  recognition 
of  preexisting  rights,  and  on  that  principle  the  soil  and  the  sovereignty, 
within  their  acknowledged  limits,  were  as  much  theirs  at  the  Declaration 
of  Independence  as  at  this  hour.  By  reference  to  the  treaty,  it  will  be 
found  that  it  amounts  to  a  simple  recognition  of  the  independence  and 
limits  of  the  United  States,  without  any  language  purporting  a  cession  or 
relinquishment  of  right,  on  the  part  of  Great  Britain;  .  .  .  grants  of  soil 
made  flagrante  hello  by  the  party  that  fails,  can  only  derive  vaUdity  from 
treaty  stipulations."  Harcourt  v.  Gaillard,  12  Wheat.  523,  527.  See 
also  M'llvaine  v.  Coxe's  Lessee,  4  Cr.  209,  212. 


48  INTERNATIONAL  LAW 

in  their  mutual  dealings;  and  international  law  in  its  begin- 
ning proposed  to  set  forth  what  this  system  was  and  should 
be.^  This  family  of  states  could  not  permit  new  accessions 
to  its  membership  unless  these  new  states  were  properly  con- 
stituted to  assume  the  mutual  relationships,  and  as  to  the 
proper  qualifications  for  admission  in  each  case,  the  states 
already  within  the  family  claim  and  exercise  the  right  to 
judge. 

(6)  The  circumstances  of  recognition  vary. 

(1)  The  most  numerous  instances  are  in  consequence  of 
division  which  involves  the  recognition  of  the  existence  of 
Varying  cir-  rnore  than  one  state  within  the  limits  which 
cumstances  of  had  formerly  been  under  a  single  jurisdiction, 
recognition.       rpj^-^  ^^^  y^^  preceded  by  recognition  of  the 

belligerency  of  a  revolted  community  within  the  jurisdiction 
of  an  existing  state,  or  may  be  preceded  by  division  of  an 
existing  state  into  two  or  more  states.^  In  the  first  case 
recognition  is  a  question  of  national  policy;  in  the  second 
case  recognition  is  usually  readily  accorded. 

(2)  In  modern  times  a  new  state  has  frequently  been 
formed  by  the  union  of  two  or  more  existing  states.^  The 
recognition  in  such  a  case  usually  follows  immediately. 

(3)  A  state  after  existence  for  a  period  of  years  may  be 
formally  admitted  into  the  family  of  states.  Japan,  for 
centuries  a  de  facto  state,  was  only  recently  fully  admitted 
to  international  statehood.'*  Turkey,  so  long  the  dread  of 
Europe,  was  formally  received  by  the  Treaty  of  Paris,  1856. 

(4)  New  states  may  be  formed  in  territory  hitherto  outside 
any  de  facto  state  jurisdiction,   or   within  regions  hitherto 

'  Suarez,  "De  Legibus,"  6.  ^  Wheat.  D.,  41  n. 

'  Greater  Republic  of  Central  America,  June  20,  1895,  from  Republics 
of  Nicaragua,  Salvador,  and  Honduras.     Dissolved  November  29,  1898. 

*  Japan  has  been  generally  recognized  since  1894,  and  her  foreign  rela- 
tions were  for  several  years  in  course  of  readjustment.  This  readjustment 
was  completed  as  regards  the  United  States  by  the  treaty  of  November 
22,  1894,  which  became  fully  operative  July  17,  1899. 


STATES  49 

considered  savage.  The  examples  of  this  class  are  mainly 
African,  as  in  the  creation  of  the  Kongo  Free  State  under 
the  International  Association  of  the  Kongo.  The  United 
States  recognized  the  Kongo  Free  State  by  acknowledging 
its  flag,  April  22,  1884.  Liberia,  originally  established  by 
the  American  Colonization  Society  in  1821,  as  a  refuge  for 
negroes  from  America  since  1847,  has  been  recognized  as  an 
independent  republic. 

(5)  From  another  point  of  view  recognition  may  he  indi- 
vidual or  collective.  Recognition  is  individual  when  a  state, 
independently  of  any  other,  acknowledges  the  international 
statehood  of  a  new  state.  This  was  the  method  of  recog- 
nition of  the  United  States.  Collective  recognition  is  by  the 
concerted  action  of  several  states  at  the  same  time.  This 
has  taken  place  most  often  in  the  admission  of  minor  states 
to  the  European  family  of  states,  as  in  the  cases  of  Greece 
by  the  powers  at  the  Conference  of  London,  1830;  Belgium, 
1831;  Montenegro,  Servia,  and  Roumania,  at  the  Congress 
of  Berlin,  1878;  Bulgaria  by  agreement  of  the  interested 
Powers  in  1908.  The  Kongo  Free  State  was  acknowledged 
by  the  International  Kongo  Conference  at  Berlin,  1885.^ 

(6)  As  an  example  of  an  act  of  dissolution,  following  a  Nor- 
Exampie  of  wegian  vote  for  dissolution,  may  be  cited  King 
an  act  of  Oscar's  address  to  the  Swedish  Riksdag,  October 

dissolution.  jg^  -^QQg. 

''Good  gentlemen,  and  Swedish  men:  It  is  an  important 
moment  when  I  now  raise  my  voice  in  this  throne  room. 

"The  union  formed  in  1814  between  the  two  peoples  of 
the  Scandinavian  peninsula,  which  during  former  centuries 
were  separate  nations,  is  now  dissolved  and  the  Swedish 
Riksdag,  by  its  decision  of  the  16th  instant,  has  confirmed 
my  proposition  in  favor  of  its  dissolution. 

*  The  Kongo  Free  State  by  Treaty  of  Cession  and  Annexation,  Novem- 
ber 28,  1907,  was  annexed  to  Belgium  under  the  title  "  Belgian  Kongo." 


50  INTERNATIONAL  LAW 

"In  truth,  it  is  not  without  great  pain  that  I  see  the  form- 
er separation  of  these  two  closely  related  peoples  again 
take  place,  and  the  disadvantages  and  perils  which  during 
the  nearly  century-old  union  seemed  to  be  forever  removed 
again  possibly  brought  to  life.  I  will,  however,  not  suppress 
the  hope  that,  notwithstanding  that  political  union  no 
longer  exists,  a  lasting  peace  between  the  peoples  of  Sweden 
and  Norway  may  nevertheless  be  preserved  during  the  future, 
to  the  happiness  and  security  of  both  nations,  and  I  am 
convinced  that  a  good  foundation  for  this  has  been  laid  by 
the  agreements  with  Norway  which  you  now  by  my  sug- 
gestion have  approved. 

"At  this  moment  may  I,  not  without  deep  emotion,  pro- 
claim my  warm  and  heartfelt  thanks  for  all  the  fidelity  and 
devotion  which  has  been  shown  to  me  by  the  noble  people 
of  Sweden  during  the  time,  so  painfully  trying  to  me,  which 
has  elapsed  since  June  7  this  year.  The  memory  thereof  I 
shall  not  only  cherish  in  my  heart  till  the  last  moment  of 
my  life,  but  it  will  constantly  encourage  me  to  use  all  the 
strength  which  is  still  left  me  in  my  old  age  to  the  best  benefit 
of  the  country  and  people  who  have  shown  me  such  fidelity 
and  love. 

"I  hereby  declare  this  Riksdag  adjourned,  and  remain, 
good  gentlemen  and  Swedish  men,  with  all  royal  grace  and 
favor,  always  well  disposed  toward  you."  ^ 

(c)  The  act  constituting  recognition  of  a  new  state  may 
be  formal,  as  by  a  declaration,  proclamation,  treaty,  sending 
^j.,,g  and  receiving  ambassadors,  salute  of  flag,  etc., 

constituting  or  informal,  by  implication  through  the  grant 
recognition.  ^^  ^^  exequatur  to  a  consul  from  the  new  state, 
or  other  act  which  indicates  an  acknowledgment  of  inter- 
national rights  and  obligations.^  It  should  be  observed, 
however,  that  the  appointment  by  or  reception  within,  an  exist- 

'  y.  S.  For.  Rel.  1905,  p.  863.  ^  1  Moore,  §  27, 


STATES  51 

ing  state,  of  agents  to  carry  on  necessary  intercourse  between 
the  existing  state  and  the  aspirant  for  recognition  does  not 
constitute  recognition.  It  may  be  essential  to  have  relations 
with  a  community  the  statehood  of  which  is  not  established, 
because  of  commercial  and  other  matters  pertaining  to  the 
rights  of  the  citizens  of  the  existing  state  w^hose  interests, 
or  who  in  person,  may  be  within  the  jurisdiction  of  the  un- 
recognized community.^  The  definite  act  of  recognition  is, 
however,  in  accord  with  the  decision  of  the  internal  authority 
to  which  this  function  is  by  state  law  ascribed.  As  foreign 
states  usually  take  cognizance  of  the  acts  of  the  executive 
department  only,  it  is  the  common  custom  to  consider  recog- 
nition as  an  executive  function,  or  as  a  function  residing  in 
the  head  of  the  state.  In  the  United  States,  the  President 
is  for  foreign  affairs  the  head  of  the  state,  and  has  the  authority 
to  recognize  new  states  in  any  manner  other  than  by  those 
acts  which  by  the  Constitution  require  the  advice  and  con- 
sent of  the  Senate,  as  in  the  conclusion  of  treaties,  and 
appointment  of  ambassadors,  other  public  ministers,  and  con- 
suls.2  President  Grant,  in  his  second  annual  message,  Decem- 
ber 5,  1870,  said,  "As  soon  as  I  learned  that  a  republic  had 
been  proclaimed  at  Paris,  and  that  the  people  of  France  had 
acquiesced  in  the  change,  the  minister  of  the  United  States 
was  directed  by  telegraph  to  recognize  it,  and  to  tender  my 
congratulations  and  those  of  the  people  of  the  United  States."  ^ 
As  President  Jackson  had  in  his  message  in  December,  1831, 
and  in  the  official  correspondence  with  Buenos  Aires  denied 
that  country's  jurisdiction  over  the  Falkland  Islands,  Justice 
McLean  said,  in  rendering  his  opinion  in  Williams  v.  Suffolk 
Insurance  Company:  "And  can  there  be  any  doubt  that  when 
the  executive  branch  of  the  government  which  is  charged 
with  our  foreign  relations,  shall,  in  its  correspondence  with 

» I  Rivier,  §§  44,  125.  '  I  HaUeck,  p.  90. 

'  See  on  this  subject,  1  Moore,  §  27. 


52  INTERNATIONAL  LAW 

foreign  nations,  assume  a  fact  in  regard  to  sovereignty  of 
any  island  or  country,  it  is  conclusive  on  the  judicial  depart- 
ment? And  in  this  view  it  is  not  material  to  inquire,  nor  is 
it  the  province  of  the  court  to  determine,  whether  the  execu- 
tive be  right  or  wrong.  It  is  enough  to  know  that  in  the 
exercise  of  his  constitutional  functions  he  has  decided  the 
question."  ^  "The  President  is  the  executive  department."  2 
{d)  Recognition  may  be  premature  and  the  recognized 
community  may  not  be  able  to  maintain  its  place  in  the 
international  circle,  or  in  case  of  a  struggle  with 
recognition.  another  state  may  be  defeated.  The  recogniz- 
ing state  must  assume  in  such  case  whatever 
consequences  may  come  from  its  misjudgment,  and  the  parent 
state  may  justly  question  the  right  of  the  recognizing  state 
in  its  action,  e.g.  the  recognition  by  France  of  the  United 
States  in  1778  could  justly  be  regarded  by  England  as  prema- 
ture and  as  a  hostile  act. 

(e)  The  recognition  of  a  new  state  is  the  recognition  of 
the  existence  of  certain  political  conditions.     This  recogni- 

Certain  poiiti-  *^°^  ^^  ^^^  Bts^t^  Carries  with  it  the  acknowledg- 
cai  conditions  mcut  of  Sovereignty,  independence,  equality,  etc. 
requisite  for      j^  jg  ^^^  essential  coucHtion  to  iust  recognition 

recognition.  u  i  •  •<  o 

that  the  new  aspirant  possess  these  qualifica- 
tions absolutely  or  potentially  to  a  reasonable  extent. 

(/)  From  its  nature,  recognition  is  irrevocable  and  abso- 
lute, unless  distinctly  conditional.  Even  when  conditional, 
if  the  r(icognition  is  prior  to  the  fulfillment  of 
irrevocable.  ^^^  Condition  by  the  recognized  state,  the  recog- 
nition cannot  be  withdrawn  because  of  non- 
fulfillment of  the  condition,  but  the  recognizing  state  may 
resort  to  any  other  means  which  would  be  admitted  in  inter- 

'  13  Pet.  415.  See  also  Jones  v.  United  States,  137  U.  S.,  202;  Foster  v. 
Neilson,  2  Pet.  253. 

2  State  of  Mississippi  v.  Johnson,  President,  4  Wall.  475,  500.  For 
review  of  the  question,  see  32  Amer.  Law  Rev.  390,  W,  L.  Penfield. 


STATES  53 

national  law  as  justifiable  against  any  other  state  failing  to 
fulfill  its  obligations,  e.g.  suspension  of  diplomatic  relations, 
retorsion,  reprisals,  or  even  war.^  In  the  case  of  Belgium, 
the  definition  of  its  boundaries  and  establishing  of  permanent 
neutralization  was  an  act  subsequent  to  the  recognition  of  its 
international  statehood,  and  in  case  of  violation  of  the  treaty 
stipulations,  Belgium  would  not  lose  its  position  as  a  state, 
but  would  be  liable  to  such  measures  of  reparation  as  the 
other  parties  to  the  treaty  might  employ.^  If  recognition 
could  be  withdrawn,  it  would  work  injustice  to  the  recognized 
state,  and  to  other  states  who,  as  third  parties,  will  not  per- 
mit their  rights  to  be  subject  to  the  will  of  the  recognizing 
state  or  states. 

(g)  The   consequences  of  recognition  immediately  touch 

the  relations  of  (1)  the  recognizing  state,  (2)  the 
of'recogni^ion     TGCognized,  (3)  the  parent  state  if  the  new  state 

is  formed  from  an  existing  state,  and  (4)  in  a 
minor  degree  other  states. 

(1)  The  recognizing  state  is  bound  to  treat  the  new  state 
in  all  respects  as  entitled  to  the  rights  and  as  under  duties 
accepted  in  international  law. 

(2)  The  recognized  state  is,  as  related  to  the  recognizing 
state,  entitled  to  the  rights,  and  under  the  obligations  pre- 
scribed in  international  law.  As  it  is  a  new  person  in 
international  law,  it  is  entitled  to  full  personal  freedom  in 
entering  into  relations  with  other  states.  So  far,  however,  as 
the  territory  within  the  new  state  was  under  local  obligations, 
these  obligations  are  transferred  to  the  new  state.  The  gen- 
eral obligations  resting  on  the  parent  state,  by  reason  of 
treaties  and  responsibilities  of  all  kinds  which  have  been 
assumed  by  the  parent  state  in  the  capacity  of  a  legal  unity, 
are  not  transferred,  because  the  identity  of  the  parent  state 
remains  intact.^ 

1 1  Rivier,  "  Droit  des  gens,"  §§  3,  11.  ^  Hall,  note  1,  p.  88.    ^  Hall,  p.  94. 


54  INTERNATIONAL  LAW 

(3)  The  parent  state,  in  cases  in  which  the  new  state  is 
formed  by  separation  from  one  already  existing,  is,  as  regards 
the  recognizing  state,  on  the  same  international  footing  as  the 
new  state.  Both  states  are  entitled  to  equal  privileges,  and 
under  like  obligations.  The  relations  to  other  states  are  not 
necessarily  much  changed. 

(4)  The  relations  of  the  states  other  than  the  recognizing, 
recognized,  and  parent  states  are  changed  to  the  extent  that 
they  must  respect  the  de  facto  relations  set  forth  in  (1),  (2), 
and  (3)  above,  i.e.  while  not  recognizing  the  new  state,  they 
must  accept  the  fact  that  the  recognition  exists  for  the  states 
who  are  parties  to  it,  and  they  are  not  entitled  to  pass  judg- 
ment as  to  the  justice  of  the  recognition. 


OUTLINE  OF  CHAPTER  VI 
LEGAL  PERSONS  HAVING   QUALIFIED   STATUS 


23.  MEMBERS  OP  CONFEDERATIONS  AND  OTHER  UNIONS. 

(a)  States  as  members  of  confederations. 

(b)  States  as  members  of  unions. 

24.  NEUTRALIZED  STATES:    Sovereign  only  in  a  qualified  degree. 

25.  PROTECTORATES   AND   SUZERAINTIES. 

(a)  Protectorates  usually  possess  all  powers  not  specifically  resigned. 

(b)  Suzerainties  possess  only  the  competence  specifically  granted. 

26.  CORPORATIONS. 

(a)  Corporations  organized  for  private  purposes. 

(b)  Corporations  exercising  political  powers. 

27.  INDIVIDUALS. 

28.  INSURGENTS. 

(a)  Definition. 

(b)  Effect  of  admission  of  insurgency. 


55 


29.  BELLIGERENTS. 

(a)  Definition. 

(b)  Conditions  prior  to  recognition. 

(c)  Grounds  of  recognition. 

(d)  Recognition  of  belligerency,  an  act  of  the  executive  authority. 

(e)  Consequences  of  recognition  of  belligerency. 

(1)  Recognition  by  a  foreign  state. 

(2)  Recognition  by  the  parent  state. 

(3)  General  effect  of  recognition. 

(!)   Admission   of   insurgency   or   recognition   of   belligerency   gives 
certain  war  status. 

30.  COMMUNITIES   NOT   FULLY   CIVILIZED. 


56 


CHAPTER  VI 
LEGAL  PERSONS  HAVING   QUALIFIED   STATUS 

23.     Members  of  Confederations  and  Other  Unions 

A  state  in  the  sense  of  public  law  is  not  sovereign  in  the 
sense  of  international  law  if  there  are  any  limitations  upon 
states  as  ^^^   power  to  enter  into  relations  with  other 

members  of  states.  Such  a  state  may  be  a  member  of  a 
confederations,  confederation  and  exercise  certain  powers  giv- 
ing it  a  qualified  international  status.  These  loose  unions 
may,  as  in  the  German  Confederation  from  1815  to  1866, 
leave  to  the  local  states  a  certain  degree  of  autonomy  in 
regulating  international  affairs  while  granting  to  the  central 
government  certain  specified  powers.  This  division  of  inter- 
national competence  is  usually  a  temporary  compromise  end- 
ing in  new  states  or  in  a  close  union,  "Inasmuch  as  both 
the  central  and  the  separate  states  carry  on  diplomatic 
intercourse  with  foreign  powers,  they  must  each  and  all  be 
regarded  as  Subjects  of  International  Law;  and  inasmuch  as 
they  carry  on  such  intercourse  only  in  a  limited  degree,  they 
cannot  be  regarded  as  fully  and  absolutely  sovereign."  ^ 

In  the  examples  of  personal  and  real  unions  and  the  like, 
the  nature  of  the  state  is  a  matter  of  public  law  and  little 
states  as  concerns  international  law.    As  related  to  inter- 

members  of  national  law,  the  question  is  how  far  are  such 
"°'*'°^'  states  restricted  in  their  dealings  with  other 

states.  A  union,  such  as  that  existing  in  the  case  of  the 
ruler  of  the  United  Kingdom  of  Great  Britain  and  Ireland 

'  Lawrence,  §  51,  p.  75. 
57 


58  INTERNATIONAL  LAW 

and  Empire  of  India,  is  of  importance  to  international  law 
only  in  its  united  capacity,  while  for  public  law  the  nature 
of  the  union  is  of  much  significance.  The  same  may  be  said 
of  the  union  of  Austria-Hungary,  and  of  the  union  of  Sweden- 
Norway  from  1814  until  1905. 

24.     Neutralized  States 

Neutralized  states  are  sovereign  only  in  a  qualified  degree. 
While  such  states  have  a  certain  formal  equality,  their  actual 
competence  is  limited  in  regard  to  the  exercise  of  sovereign 
powers.  This  limitation  as  to  neutrality  may  be  externally 
imposed  or  externally  enforced,  as  in  the  case  of  Belgium, 
Switzerland,  Luxemburg,  Kongo  Free  State,  and  till  1900, 
Samoa.  This  neutralization  may  take  place  for  political  or 
philanthropic  reasons. ^  The  degree  of  external  sovereignty 
possessed  by  neutralized  states  varies.  The  fact  that  these 
states  are  not  fully  sovereign  in  the  field  of  international  law 
in  no  way  affects  their  competence  except  in  respect  to 
matters  covered  by  the  conditions  of  neutralization.  Such 
states  are  deprived  of  the  right  of  offensive  warfare,  and 
have  not  therefore  that  final  recourse  possessed  by  fully 
sovereign  states  for  enforcing  their  demands. 

25.     Protectorates,  Suzerainties 

(a)  States  under  protectors — ^protectorates — usually  possess 
all  powers  not  specifically  resigned.  States  fully  sovereign  may 
demand  (1)  that  states  under  protectors  afford 
usually  possess  reasonable  protection  to  the  subjects  and  to  the 
all  powers  not  property  of  subjects  of  fully  sovereign  states,  and 
specifically         ^2)   that  the  protecting   state   use   reasonable 

resigned.  ^  '  ^  ^ 

measures  to  give  effect  to  the  protection  which 
it  has  assumed.     Just  how  much  responsibility  the  protecting 
state  has  depends  upon  the  degree  of  protection  exercised  and 
^  "Political  Annuals,"  since  1887  rich  in  discussion  of  neutralization. 


LEGAL  PERSONS  HAVING  QUALIFIED  STATUS  59 

assumed.  The  protectorate  of  Great  Britain  over  the  South 
African  Republic  by  the  agreement  of  1884,  terminated  in 
1902  by  war  and  absorption,  was  of  a  very  moderate  form. 
The  right  to  veto  within  a  certain  time  any  treaty  made 
with  a  foreign  state,  other  than  the  Orange  Free  State  and 
native  princes,  constituted  practically  the  only  restriction 
on  the  independence  of  the  Republic.  Great  Britain  has 
several  other  protectorates  in  Africa  over  which  the  degree 
of  authority  varies.  In  many  instances  protectorates  easily 
pass  into  colonies,  as  in  the  case  of  Madagascar,  which 
Great  Britain  recognized  as  under  French  protection  in 
1890,  which  protection  the  queen  of  Madagascar  accepted 
in  October,  1895,  and  in  August,  1896,  Madagascar  was 
declared  a  French  colony.^ 

In  the  Convention  between  the  United  States  and  the 
Republic  of  Panama,  November  18,  1903,  Article  I,  ''The 
United  States  guarantees  and  will  maintain  the  independence 
of  the  Republic  of  Panama." 

A  relationship  partaking  somewhat  of  the  nature  of  a 
protectorate  was  entered  into  by  Germany,  France,  Great  Brit- 
ain, Norway,  and  Russia  in  1907,  by  which  Norway  "under- 
takes not  to  cede  any  portion  of  her  territory  to  any  power," 
and  the  other  states  undertake  "to  respect  the  integrity  of 
Norway  "  and  in  case  of  demand  from  Norway  to  afford 
"their  support,  by  such  means  as  may  be  deemed  the  most 
appropriate,  with  a  view  to  safeguarding  the  integrity  of 
Norway."  ^ 

(b)  As  distinct  from  a  state  under  a  protectorate  which  pos- 
sesses all  competence  in  international  affairs  which  it  has  not 
specifically  resigned,  a  state  under  suzerainty  possesses  only 
such  competence  as  has  been  specifically  conferred  upon  it  by 
the  suzerain.  The  relations  are  usually  much  closer  than 
between  protecting  and  protected  states;   and  in  many  cases 

>  Statesman's  Year  Book  1901,  p.  591.        '  2  A.  J.  I.  L.  Doc,  p.  267. 


60  INTERNATIONAL  LAW 

only  the  suzerain  has  international  status,  while  the  vassal 
is  merely  tributary,  though  having  a  certain  degree  of  internal 
independence  which  may  be  in  some  instances 
possesroniy  almost  complete.  By  the  first  article  of  the 
the  competence  Treaty  of  Berlin,  Bulgaria  was  made  a  tributary 
specifically        ^^^  autonomous  principaHty  under  the  suze- 

granted.  r  ir        ^ 

rainty  of  the  Sultan  of  Turkey.  Under  Russian 
suzerainty  are  such  vassal  states  as  Bokhara  and  Khiva. 
Some  of  the  states  under  the  suzerainty  of  European  states 
have  no  status  in  international  law,  as  in  the  case  of  Bokhara 
and  Khiva.  There  exist  such  anomalous  cases  as  the  co- 
suzerainty  of  the  republic  of  Andorra,  the  collective  suzerainty 
of  the  Samoan  Islands  till  1900,  and  the  absolute  suzerainty 
of  the  United  States  over  the  '' domestic  dependent  nations" 
of  Indians. 

26.     Corporations 

From  the  point  of  view  of  international  law,  corporations 
are  generally  of  two  kinds :  corporations  organized  for  private 
purposes,  and  corporations  organized  for  purposes  involving 
the  exercise  of  delegated  sovereign  powers. 

(a)  Corporations  organized  for  private  purposes  come 
within  the  field  of  international  law,  when  in 

Corporations  .  »  ,     .  i  •   i 

organized  for     time  of  War  their  property  or  other  rights  are 
private  impaired,  when  maritime  law,  whether  of  peace 

or  war,  may  have  been  infringed,  and  when  their 
rights  are  involved  in  the  domain  of  private  international  law. 
(6)  Corporations  organized  for  purposes  involving  the 
exercise  of  political  powers  have  from  time  to  time,  for. 
Corporations  Several  centuries,  been  chartered  and  have  often 
exercising  acquired  a  quasi-international  status.     While  re- 

po  itica  powers.  g|^j.j(3^(.(j  ^q  ^}^g  performance  of  functions  intrusted 

to  them  by  their  charters,  the  home  governments  have  often 
sanctioned  acts  for  which  their  charters  gave  no  warrant. 


LEGAL  PERSONS  HAVING  QUALIFIED  STATUS  61 

The  companies  that  early  entered  America,  India,  Africa, 
and  the  later  African  companies,  are  of  this  kind.  The  de- 
velopment of  the  modern  doctrine  of  "  the  sphere  of  influence" 
has  given  an  important  position  to  these  companies  organized 
within  those  states  desirous  to  share  in  ''the  partition  of 
Africa." 

Among  the  most  notable  of  the  earlier  companies  was 
the  English  East  India  Company,^  which  received  its  first 
English  East  charter  in  1600.  During  more  than  two  hun- 
india  Company.  (jj.g(^  and  fifty  years  this  company  exercised 
practically  sovereign  powers,  until  by  the  act  of  August  2, 
1858,  the  government  heretofore  exercised  by  the  company 
was  transferred  to  the  crown,  and  was  henceforth  to  be  exer- 
cised in  its  name. 

In  recent  years  the  African  companies  chartered  by  the 
European  states  seeking  African  dominions  have  had  very 

elastic  charters  in  which  the  home  governments 
companies.        ^ave  generally  reserved  the  right  to  regulate 

the  exercise  of  authority  as  occasion  might 
demand.  These  companies  advance  and  confirm  the  spheres 
of  influence  of  the  various  states,  govern  under  slight  restric- 
tions great  territories,  and  treat  with  native  states  with  full 
authority.  The  British  South  Africa  Company,  chartered  in 
1889,  was  granted  liberal  powers  of  administration  and  full 
capacity,  subject  to  the  approval  of  the  Secretary  of  State 
for  the  Colonies,  to  treat  with  the  native  states.  The  field 
of  operations  of  this  company  was  extended  in  1891,  so  that 
it  soon  included  over  six  hundred  thousand  square  miles  of 
territory.  Of  this  company  Lawrence  said:  "Clearly  then 
it  is  no  independent  authority  in  the  eye  of  British  law,  but 
a  subordinate  body  controlled  by  the  appropriate  departments 
of  the  supreme  government.  Like  Janus  of  old,  it  has  two 
faces.     On  that  which  looks  towards  the  native  tribes  all  the 

'  6  American  Cycl.,  376. 


62  INTERNATIONAL  LAW 

lineaments  and  attributes  of  sovereignty  are  majestically 
outlined.  On  that  which  is  turned  towards  the  United 
Kingdom  is  written  subordination  and  submission."  ^  The 
acts  of  these  companies  become  the  basis  of  subsequent 
negotiations  among  the  various  European  states,  and  the 
companies  have  a  very  important  influence  in  molding  the 
character  of  African  development. 

In  recent  years  commercial  companies  have  secured  special 
concessions  for  the  construction  of  railways,  opening  of  mines, 
etc.,  in  Asia.  These  companies  have  often  received  the 
approval  of  European  states  and  have  sometimes  had  govern- 
ment subsidies.  The  areas  in  which  these  companies  operated 
or  in  which  they  had  concessions  were  considered  within  the 
spheres  of  interest  of  the  European  states. 

27.     Individuals 

Without  entering  into  discussion  of  ''the  doctrine  of  the 
separability  of  the  individual  from  the  state,"  it  is  safe  to 
affirm  that  individuals  have  a  certain  degree  of  competence 
under  exceptional  circumstances,  and  may  come  under  the 
cognizance  of  international  law.  By  the  well-established 
dictum  of  international  law  a  pirate  may  be  captured  by 
any  vessel,  whatever  its  nationality.  General  admiralty  and 
maritime  procedure  against  a  person  admit  the  legal  status 
of  an  individual  from  the  point  of  view  of  international  law. 
The  extension  of  trade  and  commerce  has  made  this  neces- 
sary. This  is  particularly  true  in  time  of  war,  when  indi- 
viduals wholly  without  state  authorization,  or  even  in 
contravention  of  state  regulations,  commit  acts  putting  them 
within  the  jurischction  held  to  be  covered  by  international  law, 
as  in  the  case  of  persons  brought  before  prize  courts.  The 
principles  of  private  international  law  cover  a  wide  range  of 
cases  directly  touching  individuals. 

'  Lawrence,  p.  82,  §  54, 


LEGAL  PERSONS  HAVING  QUALIFIED  STATUS  63 


28.     Insurgents 

(a)  Insurgents  are  organized  bodies  of  men  who,  for  public 

political  purposes,  are  in  a  state  of  armed  hostility  to  an 

established  government.    There  may  be  war  in 

the  "  material  sense  "  which,  because  belligerency 

has  not  been  recognized,  has  not  become  war  in  the  ''legal 

sense."  ^ 

(h)  The  practice  of  tacitly  admitting  insurgent  rights  has 
become  common  when  the  hostilities  have  assumed  such 
Effect  of  ad-  proportions  as  to  jeopardize  the  sovereignty 
mission  of  of  the  parent  state  over  the  rebelling  com- 
insurgency.  munity,  or  scriously  to  interfere  with  cus- 
tomary foreign  intercourse.^  In  general,  it  may  be  said 
that:  3 

(1)  Insurgent  rights  cannot  be  claimed  by  those  bodies 
seeking  other  than  political  ends.* 

(2)  Insurgent  acts  are  not  piratical,  as  they  imply  the 
pursuit  of  "  public  as  contrasted  with  private  ends."  ^ 

(3)  The  admission  of  insurgent  rights  does  not  carry  the 
rights  of  a  belligerent,  nor  imply  official  recognition  of  the 
insurgent  body.^ 

(4)  The  admission  of  insurgent  rights  does  not  relieve  the 

*  "The  distinction  between  recognition  of  belligerency  and  recognition 
of  a  condition  of  political  revolt,  between  recognition  of  the  existence  of 
war  in  a  material  sense  and  war  in  a  legal  sense,  is  sharply  illustrated  by 
the  case  before  us.  For  here  the  pohtical  department  has  not  recognized 
the  existence  of  a  de  facto  beihgerent  power  engaged  in  hostility  with  Spain, 
but  has  recognized  the  existence  of  insurrectionary  warfare  prevailing  be- 
fore, at  the  time,  and  since  this  forfeiture  is  alleged  to  have  been  in- 
curred."    The  Three  Friends,  166  U.  S.  1;  Scott,  748. 

^  Wheat.  D.,  note  L5,  p.  37. 

^  For  full  discussion  see  Wilson,  "Insurgency"  lectures  U.  S.  Naval 
War  College,  1900. 

» Hall,  5th  ed.,  p.  31  ff. 

» 2  Moore,  §§  329-335;  United  States  v.  "Ambrose  Light,"  25  Fed.  Rep. 
408.     Snow  cases,  206,  "Montezuma." 

« President  Cleveland's  Message  Dec.  2,  1885.  U.  S.  For.  Rel.  1885, 
pp.  254,  273. 


64  INTERNATIONAL  LAW 

parent  state  of  its  responsibilities  for  acts  committed  within 
its  jurisdiction.! 

(5)  When  insurgents  act  in  a  hostile  manner  toward  foreign 
states,  they  may  be  turned  over  to  the  parent  state,  or  may 
be  punished  by  the  foreign  state.  2 

(6)  A  foreign  state  must  in  general  refrain  from  inter- 
ference in  the  hostilities  between  parent  state  and  insurgents, 
i.e.  cannot  extend  hospitality  of  its  ports  to  insurgents,  extra- 
dite insurgents,  etc.^ 

(7)  When  insurgency  exists,  the  armed  forces  of  the  insur- 
gents must  observe  and  are  entitled  to  the  advantages  of  the 
laws  of  war  in  their  relations  to  the  parent  state.  * 

Note.  During  the  struggles  between  the  parties  in  the 
United  States  of  Colombia  in  1885,  the  President  of  Colom- 
bia decreed:  (1)  That  certain  Caribbean  ports  held  by  the 
opposing  party  should  be  regarded  as  closed  to  foreign  com- 
merce, and  trade  with  these  ports  would  be  considered  ilhcit 
and  contraband,  and  that  vessels,  crews,  etc.,  involved  in  such 
trade,  would  be  liable  to  the  penalties  of  Colombian  laws.  (2) 
That  as  the  vessels  of  the  opposing  party  in  the  port  of  Car- 
tagena were  flying  the  Colombian  flag,  it  was  in  violation  of 
right,  and  placed  that  party  beyond  the  pale  of  international 
law.^ 

The  United  States  refused  to  recognize  the  validity  of  the 
first  decree  unless  Colombia  should  support  it  by  an  effective 
blockading  force.^  (For  similar  position  on  part  of  Great 
Britain,  see  Pari.  Deb.  H.  C,  June  27,  1861.) 

The  United  States  also  refused  to  recognize  that  the  vessels 
of  the  insurgents  were  beyond  the  pale  of  international  law 
or  in  any  sense  piratical. 

'  Pari.  Papers,  1887,  1  Peru,  18.  China  in  1901  agreed  to  pay  various 
states  more  than  $335,000,000  as  indemnity  for  the  injuries  suffered  dur- 
ing the  Boxer  uprising  of  the  previous  year  (U.  S.  For.  Rel.  1901,  Appendix). 

'^  2  Moore,  §  331,  "  Iluascar."  ^  33  Albany  Law  Jour.,  125. 

*  Lawrence,  §  162.  » 1885,  For.  Rel.  U.  S.  252,  264. 

'  Ibid.,  pp.  254,  273. 


LEGAL  PERSONS  HAVING  QUALIFIED  STATUS  65 

The  United  States  did  not  deny  that  closure  might  be  a  do- 
mestic measure  similar  to  blockade  in  accord  with  municipal 
law,  but  emphatically  maintained  that  effective  blockade 
could  close  a  port  in  time  of  such  insurrection  only. 

It  was  further  maintained  that  "The  denial  by  this  [U.  S.] 
Government  of  the  Colombian  proposition  did  not,  however, 
imply  the  admission  of  a  belligerent  status  on  the  part  of  the 
insurgents."    Message  Pres.  Cleveland,  December  8,  1885.1 

The  President's  messages  of  December  2,  1895,  December 
7,  1896,  and  December  7,  1897,  distinctly  mention  a  status  of 
insurgency  as  existing  in  Cuba. 

During  the  rebellions  in  Chile  in  1891  and  in  Brazil  in  1894, 
the  insurgents,  while  not  recognized  as  belligerents  by  for- 
eign powers,  were  nevertheless  given  freedom  of  action  by 
these  powers. 

29.    Belligerents 

(a)  A  community  attempting  by  armed  hostility  to  free 
itself  from  the  jurisdiction  of  the  parent  state  may,  under 
certain  conditions,  be  recognized  as  a  belligerent. 

(6)  The  general  conditions  prior  to  recognition  are:  (1) 
That  the  end  which  the  community  in  revolt  seeks  shall  be 
Conditions  political,  i.e.  a  mere  mob  or  a  party  of  marauders 
prior  to  could  have  no  belligerent  rights;  (2)  the  hostili- 

recognition.  ^j^g  must  be  of  the  character  of  war  and  must 
be  carried  on  in  accord  with  the  laws  of  war;  (3)  the  pro- 
portions of  the  revolt  must  be  such  as  to  render  the  issue 
uncertain  and  to  make  its  continuance  for  a  considerable 
time  possible;  (4)  the  hostilities  and  general  government  of 
the  revolting  community  must  be  in  the  hands  of  a  responsible 
organization. 

As  each  state,  including  the  parent  state,  must  judge  as 
to  the  fact  whether  the  conditions  warranting  recognition  of 

» 2  Moore,  §  332;  Bluntschli,  §  512;  Hall,  p.  31;  U.  S.  For.  Rel.  (1885), 
pp,  252,  254,  264,  273. 


66  INTERNATIONAL  LAW 

belligerency  exist,  fhere  may  be  great  divergency  of  opinion 
in  cases  of  recognition,  i  but  the  question  of  belligerency  is  a 
question  of  fact  and  never  a  question  of  theory. 

(c)  A  community  carrying  on,  in  accord  with  the  rules 
of  war,  an  armed  revolt  of  such  proportions  as  to  make 

the  issue  uncertain  and  acting  under  a  respon- 

Groiinds  of  •,  i  •      x-  ^   u  •      j       -^.u 

recognition.  ^^"^^  organization  may  not  be  recognized  with- 
out offense  to  the  parent  state  except  upon 
certain  grounds.  The  generally  admitted  ground  is,  that  the 
interests  of  the  recognizing  state  be  so  far  affected  by  the 
hostilities  "as  to  make  recognition  a  reasonable  measure  of 
self-protection."  2  "The  reason  which  requires  and  can  alone 
justify  this  step  [recognition  of  belligerency]  by  the  govern- 
ment of  another  country,  is,  that  its  own  rights  and  interests 
are  so  far  affected  as  to  require  a  definition  of  its  own  rela- 
tions to  the  parties.  ...  A  recognition  by  a  foreign  state  of 
full  belligerent  rights,  if  not  justified  by  necessity,  is  a  gratu- 
itous demonstration  of  moral  support  to  the  rebellion,  and 
of  censure  upon  the  parent  government."  ^ 

(d)  Recognition  of  belligerency  is  naturally  an  act  of  the 
executive  authority.  * 

The  following  is  the  proclamation  of  Queen 
birrc"!  Victoria  of  May  13,  1861:- 

act  of  the  execu-       ..  „^  i  -i  .in 

tive  authority.  Whereas  we  are  happily  at  peace  with  all 

sovereign  powers  and  states: 

"And  whereas  hostilities  have  unhappily  commenced  be- 
tween the  Government  of  the  United  States  of  America  and 
certain  states  styling  themselves  the  Confederate  States  of 
America : 

"And  whereas  we,  being  at  peace  with  the  Government 
of  the  United  States,  have  declared  our  royal  determination 
to  maintain  a  strict  and  impartial  neutrality  in  the  contest 
between  the  said  contending  parties: 

*  See  numerous  references  in  51  Br.  and  Fr.  St.  Papers;  also  Hall,  p.  33. 
2  HaU,  p.  33.  3  Wheat.  D.,  note  15,  p.  34.  *  1  Moore,  §§  59-70. 


LEGAL  PERSONS  HAVING  QUALIFIED  STATUS  67 

"We,  therefore,  have  thought  fit,  by  [and  with]  the 
advice  of  our  privy  council,  to  issue  this  our  royal  procla- 
mation : 

"And  we  do  hereby  strictly  charge  and  command  all  our 
loving  subjects  to  observe  a  strict  neutrality  in  and  during 
the  aforesaid  hostilities,  and  to  abstain  from  violating  or 
contravening  either  the  laws  and  statutes  of  the  realm  in 
this  behalf  or  the  law  of  nations  in  relations  thereto,  as  they 
will  answer  to  the  contrary  at  their  peril." 

(e)  Certain  consequences  follow  the  recognition  of  bellig- 
erency. 

(1)  //  recognition  is  by  a  foreign  state 

(a)  From  the  date  of  recognition,  the  parent  state  is 
released  from  responsibility  to  the  recognizing  state  for  the 

Consequences     ^^^^  ^f  the  belligerents. 

of  recognition         (b)  So  far  as  the  recognizing  state  is  con- 

of  belligerency.   ^^^.^^^^    ^j^^    p^^.^^^^    ^^^^^    ^^^    ^^^    belligerent 

community  would  have  the  same  war  status,  i.e.  in  the  ports 
of  the  recognizing  state,  the  vessels  of  both  parties  would 
have  the  same  privileges,  the  merchant  vessels  of  the  rec- 
ognizing state  must  submit  to  the  right  of  search  as  justly 
belonging  to  both  parties;  in  fine,  so  far  as  the  prosecution 
of  hostilities  is  concerned,  the  recognizing  state  must  ac- 
cord the  belligerent  community  all  the  privileges  of  a  full 
state. 

(c)  The  recognizing  state  may  hold  the  belligerent  com- 
munity, if  it  subsequently  becomes  a  state,  accountable  for 
its  acts  during  the  period  after  the  recognition  of  its  bellig- 
erency. If,  however,  the  parent  state  reduces  the  revolting 
community  to  submission,  the  recognizing  state  can  hold  no 
one  responsible  for  the  acts  of  the  recognized  community 
from  the  date  of  recognition, 

(d)  This    recognition    does    not    necessarily    affect    other 


68  INTERNATIONAL  LAW 

than  the  three  parties,  the  recognizing  state,  the  belligerent 
community,  and  the  parent  state. 

(2)  //  recognition  is  by  the  parent  state 

(a)  From  the  date  of  recognition,  the  parent  state  is 
released  from  responsibility  to  all  states  for  the  acts  of  the 
belligerents. 

(b)  So  far  as  the  prosecution  of  hostilities  is  concerned,, 
the  community,  recognized  as  belligerent  by  the  parent  state, 
is  entitled  to  full  war  status. 

(c)  From  the  date  of  recognition  by  the  parent  state,  the 
belligerent  community  only  is  responsible  for  acts  within  its 
jurisdiction,  and  if  subdued  by  the  parent  state,  no  one  can 
be  held  responsible,  i.e.  contracts  made  with  a  belligerent,  or 
responsibilities  assumed  by  a  belligerent,  do  not  fall  upon 
the  parent  state,  when  victorious  in  the  contest.* 

(d)  Recognition  of  belligerency  by  the  parent  state  gives 
the  revolting  community  a  war  status  as  regards  all  states. 

(3)  In  a  broad  way,  recognition  by  the  parent  state  makes 
general  those  conditions  which  may  exist  only  for  the  parties 

directly  concerned,  when  recognition  is  by  a 
^fTe^cognition     single   foreign   state.    In   cases   where   several 

states  recognize  the  belligerency  of  a  ho^stile 
community,  other  states  that  have  not  recognized  its  bel- 
ligerency may,  without  offense  to  the  parent  state,  treat  the 
hostile  community  as  a  lawful  belligerent,  which  treatment 
would  be  constructive  recognition.  The  general  effect  of 
recognition  is  to  extend  to  the  belligerent  all  the  rights  and 
obligations  as  to  war  that  a  state  may  possess,  and  to  free 
the  parent  state  from  certain  obligations  while  giving 
some  new  rights.  The  parent  state  may  use  the  proper 
means    for    the    enforcement    of    neutrality    and    demand 


LEGAL  PERSONS  HAVING  QUALIFIED  STATUS  69 

reparation  for  any  breach  of  the  same,  may  maintain 
blockade,  prize  courts,  and  talie  other  measures  allowable 
in  war. 

(/)  The  condition  of  insurgency  is  usually  tacitly  admitted 
for  a  period  prior  to  the  recognition  of  belligerency,  and  the 
Admission  or  vessels  of  the  insurgents  are  not  regarded  as 
recognition  of  pirates  either  in  practice  or  theory.  They  have 
war  status.  ^^^  ^j^^  animus  jurandi.  The  admission  of  in- 
surgent status  or  the  recognition  of  belligerency  does  not 
imply  anything  as  to  the  political  status  of  the  community. 
In  the  first  place  there  is  conceded  a  qualified  war  status, 
and  in  the  second  full  war  status. 

30.     Communities  Not  Fully  Civilized 

While  there  is  no  agreement  as  to  what  constitutes  civil- 
ization, still  international  law  is  considered  as  binding  only 
upon  states  claiming  a  high  degree  of  enlightenment.  Com- 
munities, whether  or  not  politically  organized  and  not  within 
the  circle  of  states  recognized  by  international  law,  because 
they  are  not  regarded  as  sufficiently  civilized,  are  not  treated 
as  without  rights.  It  is  held  that  these  communities  not  fully 
civilized  should  be  treated  as  civilized  states  would  be  treated, 
so  far  as  the  time  and  other  circumstances  permit.  Unduly 
severe  measures,  whether  in  war  or  peace,  should  not  be  used 
by  civilized  states  in  dealing  with  those  not  civilized.  It  may 
be  necessary  that  barbarians  should  be  used  as  auxiliary  forces 
in  contests  with  barbarians,  but  it  is  now  held  that  such 
forces  should  be  officered  and  controlled  by  the  civilized 
state.  Extreme  measures,  in  the  way  of  devastation  and 
destruction,  have  been  used  with  the  idea  of  impressing  upon 
the  minds  of  barbarians  respect  for  the  power  of  a  state,  but 
it  is  now  questioned  how  far  this  is  fitting  for  states  claiming 
civilization.    Many  states  not  admitted  to  the  circle  of  nations 


70  INTERNATIONAL  LAW 

have  now  acquired  such  a  status  as  entitles  them  to  the 
general  privileges  of  international  law  to  the  extent  to  which 
their  action  has  not  violated  its  provisions,  and  it  is  generally 
so  accorded,  as  for  many  years  to  China,  Persia,  and  other 
Asiatic  states. 


PAKT  THREE 
INTERNATIONAL  LAW  OF  PEACE 


OUTLINE  OF  CHAPTER  VII 
GENERAL  RIGHTS  AND   OBLIGATIONS  OF  STATES 

31.  EXISTENCE:  The  single  comprehensive  right  of  a  state. 

32.  INDEPENDENCE:     Freedom  from  external  political  control. 

33.  EQUALITY:   The  possession  of  equal  rights  in  political  affairs. 

34.  JURISDICTION:   The  right  to  exercise  state  authority. 

35.  PROPERTY:   The  right  of  domain  in  the  territory. 

36.  INTERCOURSE:    A   right   necessary   for    the    transaction    of    state 

business. 


72 


CHAPTER  VII 
GENERAL  RIGHTS  AND   OBLIGATIONS  OF  STATES 

3 1 .     Existence 

The  most  comprehensive  right  of  a  state  is  the  right  to 
exist  as  a  sovereign  political  unity.  From  this  comprehen- 
sive right  flow  the  general  rights  of  independence,  equality, 
jurisdiction,  property,  and  intercourse  and  the  obligations 
which  the  exercise  of  these  rights  imply.  There  are  many 
classifications  of  the  general  rights  of  states.  During  the 
eighteenth  century  a  classification  into  perfect  and  imperfect 
rights  was  common.  A  classification  based  on  the  essential 
nature  of  the  state  as  a  sovereign  political  unity,  having 
(1)  a  right  to  existence  and  (2)  from  the  point  of  view  of 
international  law,  having  relations  to  other  states,  has  been 
widely  followed.  The  rights  based  on  the  comprehensive 
right  to  existence  were  variously  named  as  essential,  funda- 
mental, primitive,  innate,  absolute,  permanent,  etc.,  while 
the  rights  derived  from  the  practice  of  states  in  their  mutual 
relations  were  called  accidental,  derived,  secondary,  acquired, 
relative,  contingent,  etc.  The  view  now  most  generally 
recognized  is  that  from  the  single  comprehensive  right  of 
states  to  exist,  all  other  rights  flow,  and  all  other  rights  are 
therefore  related,  if  not  directly,  at  least  by  virtue  of  their 
common  source. 

32.     Independence 

Independence  from  the  point  of  view  of  international  law 
is  freedom  from  external  political  control.    While  all  states 

73 


74  INTERNATIONAL  LAW 

possessing  freedom  from  external  political  control  may  not 
be  admitted  to  the  family  of  states,  yet  in  order  that  a  state 
may  be  admitted,  it  is  regarded  as  essential  that  it  be  inde- 
pendent. The  recognition  of  a  state  carries  with  it  the 
recognition  of  independence.  However,  from  the  fact  that 
there  are  states  in  the  world  having  equal  rights  to  independ- 
ence, it  follows  that  the  field  of  action  of  each  state  is 
limited  by  the  necessity  of  respect  for  the  right  of  independ- 
ence belonging  to  other  states. 

The  recognition  of  a  state  presupposes  autonomy  as  an 
essential  for  the  existence  of  a  sovereign  political  unity,  and 
autonomy  implies  the  right  to  determine  and  pursue  such 
lines  of  action  as  may  be  in  accord  with  its  policy. 

33.     Equality 

All  states,  the  existence  of  which  has  been  recognized  by 
the  family  of  states,  are  regarded  as  possessed  of  equal  rights 
in  political  affairs,  so  far  as  legal  competence  is  concerned. 

This  does  not  imply  an  equality  of  territorial  area,  popu- 
lation, wealth,  rank,  and  influence,  etc.,  or  that  a  given  state 
may  not  voluntarily  limit  the  exercise  of  its  powers. 

34.     Jurisdiction 

The  right  of  jurisdiction  is  the  right  to  exercise  state 
authority.  The  right  of  jurisdiction  is  in  general  coextensive 
with  the  dominion  of  the  state.  It  may  be  "laid  down  as 
a  general  proposition  that  all  persons  and  property  within 
the  territorial  jurisdiction  of  a  sovereign  are  amenable  to 
the  jurisdiction  of  himself  or  his  courts;  and  that  the 
exceptions  to  this  rule  are  such  only  as  by  common  usage 
and  public  policy  have  been  allowed,  in  order  to  preserve 
the  peace  and  harmony  of  nations,  and  to  regulate  their  in- 
tercourse in  a  manner  best  suited  to  their  dignity  and  rights."  ^ 

'  Story,  "Santissima  Trinidad,"  7  Wheat.  354;  Scott,  701. 


GENERAL  RIGHTS  AND  OBLIGATIONS  OF  STATES        75 

3  5 .     Property 

In  international  law,  as  against  other  states,  a  given  state 
has  the  right  of  property  or  domain  in  the  territory  and  fix- 
tures within  its  limits.  This  right  of  property  is  not  the 
right  in  the  old  feudal  sense,  for  in  the  public  law  of  the 
state  the  title  of  ownership  may  vest  in  the  state  only  in  a 
limited  sense  as  over  territory  to  which  none  of  its  subjects 
have  title,  and  over  such  other  forms  it  has  ownership  in 
corporate  capacity,  as  public  buildings,  forts,  arsenals,  ves- 
sels, lighthouses,  libraries,  museums,  etc.  The  right  of  emi- 
nent domain  as  a  domestic  right  may  also  vest  in  the  state. 
While  from  the  point  of  view  of  international  law,  a  state 
has  the  right  of  property  over  all  territorial  and  non-territorial 
possessions  within  its  limits  as  against  other  states,  yet  the 
effect  of  this  right  is  somewhat  modified  by  the  fact  of  public 
or  private  ownership,  particularly  as  regards  the  laws  of  war, 
neutrality,  and  intercourse. 

36.     Intercourse 

In  early  periods  of  history  intercourse  among  states  was 
very  limited  and  sometimes  even  prohibited.  At  the  present 
time  the  necessities  of  state  existence  presuppose,  hi  inter- 
national law,  the  recognition  of  the  right  of  intercourse  in 
order  that  state  business  may  be  transacted.  The  principles 
upon  which  this  intercourse  is  carried  on  are  well  established, 
and  form  the  basis  of  diplomatic  practice. 


OUTLINE  OF  CHAPTER  VIII 
EXISTENCE 

37.  APPLICATION   OP  THE   RIGHT. 

(a)  Right  to  take  measures  necessary  for  self-defense. 

(b)  Responsibility  for  acts. 

(c)  Right  to  administer  internal  affairs. 

38.  EXTENSION  OF  THE  RIGHT  TO  SUBJECTS  OF  THE  STATE. 


76 


CHAPTER  VIII 
EXISTENCE 

37.     Application  of  the  Right 

Besides  the  general  rights  of  independence,  equality,  juris- 
diction, property,  and  intercourse,  the  right  of  existence  in  its 
exercise  may  lead  to  certain  acts  for  which  the  general  prin- 
ciples of  international  law  do  not  provide  rules.  1 

(a)  In  face  of  actual  dangers  immediately  threatening  its 
existence,  a  state  may  take  such  measures  as  are  necessary 
for  self-preservation,  even  though  not  sanctioned 
measures  ^  ^  by  international  law.  Such  measures,  however, 
necessary  for  must  be  from  "a  necessity  of  self-defense,  in- 
se  .  e  ense.  g^^nt,  overwhelming,  and  leaving  no  choice  of 
means  and  no  moment  for  deliberation,"  and  further  "must 
be  limited  by  that  necessity  and  kept  clearly  within  it."  2 
The  wide  discussion  of  the  case  of  the  Virginius  involved 
the  principle  of  the  limits  of  the  right  of  self-defense. ^ 

(h)  The  right  to  act  in  a  manner  which  international  law 
does  not  sanction  or  denies,  even  though  it  may  be  strictly 
to  preserve  the  existence  of  the  state  so  acting, 
f^ractT'^'^'*^^  cannot  be  upheld  as  freeing  it  from  responsi- 
bility for  such  acts,  and  these  acts  may  be 
regarded  as  hostile  by  states  affected  by  them. 

(c)  As  the  domestic  acts  of  a  state  are  not  within  the 
province  of  international  law,  a  state  has  the  right  to  admin- 

» Hall,  p.  269. 

» "Caroline,"  1  Whart.  §  50  c;  2  ibid.,  §  224.     See  Appendix  XV. 
» 2  Moore,  pp.  895,  967,  980;  Scott  Cases,  308,  321  n. 

77 


78  INTERNATIONAL  LAW 

ister  its  internal  affairs  in  such  manner  as  it  may  determine 
fit  to  secure  and  further  its  existence.  It  may  adopt  any 
Right  to  ad-  form  of  government ;  may  plan  for  its  growth 
minister  in-  by  developing  its  resources,  by  encouraging  im- 
ternai  affairs,  migration;  may  strengthen  defenses  and  forces; 
may  regulate  trade,  commerce,  and  travel.  Wliile  acts  of 
this  character  may  work  injury  to  other  states,  they  are  not 
in  general  just  grounds  for  war,  but  may  properly  be  met  by 
like  acts  on  the  part  of  other  states. 

38.     Extension  of  the  Right  to  Subjects  of  the  State 

As  the  subjects  of  a  state  are  necessary  for  its  existence, 
the  right  of  self-preservation  has  been  held  to  justify  certain 
acts  of  states  to  secure  to  their  subjects  in  their  relations  with 
foreign  states  such  rights  as  the  foreign  states  would  accord 
to  their  own  subjects  under  similar  circumstances.  That  a 
local  tribunal  within  a  purely  domestic  division  of  a  state 
cannot  secure  to  foreigners  rights  to  which  they  are  entitled, 
in  no  way  frees  that  state,  whose  sovereignty  extends  over 
such  domestic  division,  from  responsibility  for  violation  of 
the  foreigner's  right.  International  law  recognizes  only  the 
personality  of  the  sovereign  political  unity,  and  cannot 
cognize  the  administrative  and  other  subdivisions.  Italy  as- 
sumed a  correct  position  in  holding  the  United  States  govern- 
ment responsible  for  the  murder  of  Italian  subjects  while  in 
custody  of  officers  of  the  State  of  Louisiana  in  1891.^  Hall 
says:  "States  possess  a  right  of  protecting  their  subjects 
abroad  which  is  correlative  to  their  responsibility  in  respect 
of  injuries  inflicted  upon  foreigners  within  their  dominions."  ^ 
"Fundamentally,  however,  there  is  no  difference  in  principle 
between  wrongs  inflicted  by  breach  of  a  monetary  agreement 

>  U.  S.  For.  Rel.  1891,  pp.  628-658;  "New  Orleans  v.  Abbagnato,"  62 
Fed.  Rep.  240;  1  Butler,  "Treaty-making  Power,"  149-166. 
'  Hall,  p.  278. 


EXISTENCE  79 

and  other  wrongs  for  which  the  state,  as  itself  the  wrong- 
doer, is  immediately  responsible.  The  difference  which  is 
made  in  practice  is  in  no  sense  obligatory;  and  it  is  open  to 
governments  to  consider  each  case  by  itself,  and  to  act  as 
seems  well  to  them  on  its  merits."  ^ 

» Hall,  p.  281. 


OUTLINE   OF  CHAPTER  IX 
INDEPENDENCE 

39.  MANNER  OF   EXERCISE   OF   THE   RIGHT. 

40.  EUROPEAN   BALANCE   OF   POWER. 

41.  MONROE   DOCTRINE   AND  AMERICAN  POLICIES. 

(a)  The  Monroe  Doctrine. 

(1)  Reservation  made  by  the  United  States  in  regard  to  the 

Monroe  Doctrine. 

(2)  A  policy  of  the  United  States,  not  a  principle  of  international 

law. 

(3)  Extent  to  which  it  has  been  recognized. 

(b)  Other  American  policies. 

(1)  Early  congresses  of  South  American  states. 

(2)  Pan-American  Conferences,  their  aims  and  results. 

(3)  Certain  principles  observed  only  in  the  western  hemisphere. 

42.  NON-INTERVENTION. 

43.  PRACTICE  IN  REGARD  TO  INTERVENTION. 

(a)  Intervention  for  self-preservation. 

(b)  Intervention  to  prevent  illegal  acts. 

(c)  Intervention  by  general  sanction.  ■» 

(d)  Other  grounds  of  intervention. 

(1)  To  carry  out  treaty  stipulations. 

(2)  To  preserve  the  balance  of  power. 

(3)  On  the  groimds  of  humanity. 

(4)  To  act  as  mediator  in  time  of  civil  war. 
(6)  On  the  ground  of  financial  transactions. 

(e)  Intervention  justifiable  only  on  ground  of  self-preservation. 


80 


CHAPTER  IX 
INDEPENDENCE 

39.     Manner  of  Exercise  of  the  Right 

Strictly,  there  can  be  no  limitation  or  restriction  of  inde- 
pendence, for  it  is  a  recognized  principle  that  independence 
must  be  absolute  and  inalienable.  In  fact,  every  state  vol- 
untarily accepts  either  formally  by  treaty  or  tacitly  by  prac- 
tice, many  conditions  which  restrain  it  in  the  exercise  of  its 
powers.  The  independence  of  the  state  is  not  thereby  vio- 
lated, since  the  restraint  is  exercised  by  the  state  itself,  and 
is  not  an  act  of  external  control.  The  number  of  these 
restraints  which  states  voluntarily  assume  is  continually 
increasing,  owing  to  the  closer  relations  of  humanity. 

The  exercise  of  the  right  of  independence  involves  the 
privilege  of  making  treaties,  alliances,  contracts,  and  munici- 
pal laws,  so  far  as  these  do  not  violate  international  law  or 
the  right  of  independence  as  possessed  by  other  states.  A 
state  may  go  to  war  to  maintain  its  independence.  The 
international  rights  of  a  state  are  in  general  closely  related 
to  the  right  of  independence,  and  derive  force  from  this 
relationship. 

40.     European  Balance  of  Power 

Undoubtedly  the  idea  of  establishing  a  relationship  among 
"  neighboring  states  more  or  less  connected  with  one  another, 
by  virtue  of  which  no  one  among  them  can  injure  the  inde- 
pendence or  essential  rights  of  another  without  meeting  with 

81 


82  INTERNATIONAL  LAW 

effectual  resistance  on  some  side  and  consequently  exposing 
itself  to  danger"  i  is  not  a  modern  idea.     Ancient  states 
united  to  prevent  the  growth  of  some  neighboring  power 
to  such  magnitude  as  would  threaten  their  independence.2 
From  the  beginning  of  the  modern  period  of  international 
law,  Peace  of  Westphalia  (1648),  the  idea  of  maintaining  an 
equilibrium  among  the  powers  of  Europe  has  had  great  in- 
fluence, and  until  the  latter  part  of  the  nineteenth  century 
was  regarded  as  one  of  the  fundamental  principles  of  Euro- 
pean international  practice.     Many  treaties  aim  to  preserve 
this  balance  among  the  European  powers,  and  the  words 
"balance"  and  "equilibrium"  often  appear.^    The  Treaty  of 
Utrecht  in  its  provision  between  Spain  and  Great  Britain, 
July  13, 1713,  gives  as  its  object  ad  firmandam  stabiliendamque 
pacem  ac  tranquillitatem  christiani  orbis  justo  potenticB  equilihro. 
The  idea  that  independence  was  to  be  preserved  by  some 
balance  of  power  reappears  in  successive  treaties.    This  idea 
of  the  balance  of  power  has  led  to  most  diverse  action.     Un- 
just rulers  have  made  it  the  cloak  for  action  entirely  outside 
the  sanction  of  international  law.     Many  times  it  has  "  served 
as  the  pretext  for  a  quarrel,  and  repeatedly  made  hostilities 
general  which  would  otherwise  have  been  shut  up  within  a 
comparatively  small  area."  ^    The  feeling  that  the  balance 
of  power  was  a  necessary  policy  for  the  preservation  of 
European  states,  led  to  the  idea  that  states  should  be  con- 
strained to  certain  lines  of  action,  which  would  prevent,  in 
many  cases,  normal  growth.    Frequently  the  independence 
of  a  state  was  violated  to  anticipate  an  action  which  might 
disturb  the  European  equilibrium.     The  partitions  of  Poland 
show  a  violation  of  the  principles  of  international  law  for 
the  sake  of  giving  equal  compensation  to  the  parties  to  it. 
The  doctrine  of  the  balance  of  power  is  not  a  principle  of 

'  Von  Gentz,  "Fragments  upon  the  Balance  of  Power  in  Europe,"  1806. 
^  Hume,  "Essays,"  VIL  ^  Nys,  "  Origines,"  pp.  165  ff. 

»  Bernard,  "Lectures  on  Diplomacy,"  98. 


INDEPENDENCE  83 

international  law,  but  merely  a  maxim  of  European  politi- 
cal practice  pretending  to  state  the  means  of  maintaining 
the  independence  of  European  states.  ^ 

41.     Monroe  Doctrine  and  American  Policies 

(a)  Another  maxim  of  political  action  is  that  which  has 
become  known  as  the  "Monroe  Doctrine."  2     \Miile  enun- 
ciated by  a  single  state,  it  had  in  view  the 
Doctrine  maintenance  of  the  independence  of  the  states 

of  the  American  continent.  For  many  years 
after  the  Revolutionary  War  the  opinion  prevailed  that 
Europe  viewed  with  disfavor  the  growth  of  the  American 
republic.  The  Holy  Alliance,  formed  on  the  downfall  of 
Napoleon,  was  followed  by  several  congresses  of  European 
powers,  at  one  of  which,  held  at  Verona  in  1822,  the  subject 
of  helping  Spain  recover  her  revolting  colonies  in  America 
was  discussed.  This  led  to  the  declaration  of  President  Mon- 
roe in  his  message  of  December  2, 1823,  that  there  should  be 
(1)  no  more  European  colonies  on  these  continents,  (2)  no 
extension  of  the  European  political  system  to  any  portion 
of  this  hemisphere,  (3)  no  European  interposition  in  the  affairs 
of  the  Spanish-American  republics.  This  doctrine  has  been 
repeatedly  affirmed  by  the  United  States,  and  in  some  in- 
stances very  liberally  interpreted.  It  in  no  way  embodies 
a  principle  of  international  law,  though  the  European  and 
other  states  may  regard  it  as  expressing  the  attitude  of  the 
United  States  upon  the  points  covered,  and  if  desirous  of 
avoiding  friction,  govern  themselves  accordingly. 

The  United  States,  in  signing  the  Hague  Convention  for 
the  Pacific  Settlement  of  International  Disputes  in  1899, 
made  the  following  reservation:  "Nothing  contained  in  this 
convention  shall  be  so  construed  as  to  require  the  United 

1  Tucker,  "Monroe  Doctrine,"  4. 

^  For  documentary  material,  see  6  Moore,  §  §  927-969. 


84  INTERNATIONAL  LAW 

States  of  America  to  depart  from  its  traditional  policy  of  not 
intruding  upon,  interfering  with,  or  entangling  itself  in  the 
Reservation  political  question  of  policy  or  internal  adminis- 
made  by  the  tration  of  any  foreign  state ;  nor  shall  anything 
United  states    contained  in  the  said  convention  be  construed 

in  regard  to 

the  Monroe  to  imply  a  relinquishment  by  the  United  States 
Doctrine.  q£  America  of  its  traditional  attitude  towards 

purely  American  questions,"  In  ratifying  on  April  2,  1908 
this  same  convention  as  revised  at  the  Second  Hague  Con- 
ference in  1907  the  Senate  of  the  United  States  made  the 
same  reservation. 

If  the  Monroe  Doctrine  were  a  principle  of  international 
law,  the  United  States  would  not  be  justified  in  changing 
its  attitude  upon  the  doctrine,  but  probably  it 
Un^ted^tates^  would  not  be  seriously  maintained  that  the 
not  a  principle  United  States  might  not  enunciate  another 
oMnternationai  ^^^-^y    setting    aside    the    Monroe    Doctrine.^ 

Reddaway  well  says,  "  that  it  produced  its  de- 
sired effect  as  an  act  of  policy,  but  in  no  way  modified  the 
Law  of  Nations."  ^ 
The  doctrine  3  has  always  failed  of  direct  legislative  in- 
dorsement, and  at  times  has  been  strenuously 
which  it  has  opposed  by  European  powers.  That  it  has 
been  been    recognized,    however,    to   a   certain   ex- 

recognize  .  iq^i^^  appears  by  the  course  of  events.^  It 
was  in  1895  applied  in  the  case  of  the  intervention  by  the 
United  States  in  the  dispute  over  the  boundary  between 

*  Hart,  "Foundations  of  American  Foreign  Policy,"  p.  211  ff. 

»  "The  Monroe  Doctrine,"  VI. 

3  President  Roosevelt  in  his  message  of  December  3,  1901,  said:  "The 
Monroe  Doctrine  should  be  the  cardinal  feature  of  the  foreign  policy  of  all 
the  nations  of  the  two  Americas,  as  it  is  of  the  United  States.  .  .  .  The 
Monroe  Doctrine  is  a  declaration  that  there  must  be  no  territorial  aggran- 
dizement by  any  non-American  power  at  the  expense  of  any  American 
power  on  American  soil.  .  .  .  We  do  not  guarantee  any  state  against 
punishment  if  it  misconducts  itself,  provided  that  punishment  does  not 
take  the  form  of  the  acquisition  of  territory  by  any  non-American  power." 

*Sec  Tucker,  "Monroe  Doctrine,"  p.  116. 


INDEPENDENCE  85 

Venezuela    and    British    Guiana.    Arbitration    settled   this 
difficulty.  1 

In  1902  an  attempt  was  made  by  Germany  and  England 
to  enforce  their  money  claims  against  Venezuela  by  sinking 
Venezuelan  war  vessels  and  blockading  Venezuelan  ports. 
Both  the  German  and  British  governments  disavowed  any 
intention  to  acquire  territory,  and  measures  were  finally 
adopted  for  the  settlement  of  the  claims  of  these  and  other 
states  by  reference  to  arbitration.^ 

(6)  Other  American  policies  have  gradually  been  developed 
in  the  western  hemisphere.    The  proclamation  of  the  Monroe 
Doctrine  emphasized  the  growth  of  the  feeling 
policies  ™^'^'*'^"  that  the  states  of  America  had  interests  pecu- 
liarly American.    The  American  states  which 
had  so  recently  broken  from  European  allegiance  soon  began 
their  endeavor  to  unite  for  common  action  on  American 
matters.    A  congress  of  American  states  was  called  at  Pan- 
ama in  1826.^    This  Congress  of  Panama  did  not  realize 
the  hopes  which  had  been  entertained  by  some  upon  the 
possibility  of  developing  a  distinctively  Ameri- 
gresses  of         Can  policy.    It   had,   however,   among  its  ob- 
South  Ameri-     jg^^^g  ij^q  promotion  of  the  peace  and  union  of 
American    nations.     In    1831    another    similar 
congress  was  called.     Five  South  American  states  met  at 
Lima  in  1847.     During  the  next  forty  years  there  were  sev- 
eral congresses  called  with  the  idea  of  bringing  the  South 
American  states  into  closer  union  and  with  the  idea  of  pro- 
viding means  for  the  maintenance  of  amicable  relations  among 
these  states  particularly  through  mediation  and  arbitration. 
In   1888,   after  a  considerable  period  of  discussion,   the 
United  States  Congress  authorized  the  President  to  call  a 

lAnn.  Cycl.  (1895),  p.  741;  (1896),  p.  804;  (1899),  p.  845,  also  U.  S. 
For.  Rel.  1896. 

'  U.  S.  For.  Rel.  1903,  pp.  417  S.;  452  ff.;  601  S.;  U.  S.  For.  Rel.  1904, 
p.  509. 

3  American  State  Papers,  5  For.  Rel.,  839-905. 


86  INTERNATIONAL  LAW 

Pan-American  Conference  to  meet  at  Washington  in  1889. 

This  Conference  voted  various  recommendations  relating  to 

the  general  and  particular  relations  of  the  Amer- 

Pan-American      .  .  ^        .  .  .         , 

Conferences,      ican  statcs.     Qucstions  of  private  mternational 
their  aims  jg^^  received  much  attention.     Arbitration  was 

and  results.  •     ^  t  r  ^•         •  •         i 

indorsed  as  a  means  of  settling  mternational 
controversies.  Other  matters,  as  extradition,  patents,  trade- 
marks, etc.,  were  discussed.  This  Conference  was  followed  by 
the  Second  Conference  at  Mexico,  in  1901-1902,  and  the 
Third  at  Rio  Janeiro,  in  1906.  Resolutions  were  adopted  at 
this  conference  providing  for  the  negotiation  of  conven- 
tions covering:  (1)  the  status  of  naturalized  citizens  re- 
turning to  the  country  of  their  origin;  (2)  the  codification 
of  public  and  private  international  law;  (3)  patents,  trade- 
marks and  copyright  law;  and  (4)  arbitration  of  pecuniary 
claims.  The  First  Pan-American  Scientific  Congress  held 
at  Santiago,  Chile,  1908-1909,  gave  much  attention  to  in- 
ternational questions  of  special  interest  to  the  American 
states. 

There  have  come  to  be  in  the  western  hemisphere  certain 
accepted  international  policies  in  which  the  European  states 

have  only  a  remote  or  occasional  interest.  Cer- 
ci^^ies'observed  ^^^^  principles  whicli  European  states  have  not 
only  in  the  yet  admitted  have  by  treaty  been  extensively 
western  adopted  among  American  states,  as  in  the  case 

hemisphere.  ^  .    ^  .  .  .        ."" 

of  the  principle  of  obligatory  arbitration  in  the 
event  of  international  differences.  The  South  American  states 
have  in  the  instance  of  Chile  and  the  Argentine  Republic,  by 
the  convention  of  May  28,  1902,  led  in  the  limitation  of  arma- 
ments.^  There  has  been  manifested  among  the  American 
states  in  recent  years  an  increasing  tendency  to  stand  together 
and  to  develop  policies  which  are  American  in  character. 
As  in  Europe  there  has  grown  up  the  idea  of  the  balance  of 

1 1  A.  J.  I.  L.  Doc,  p.  294. 


INDEPENDENCE  87 

power,  SO  common  interests  and  ideals  have  developed  to  some 
extent  an  American  policy. 

42.     Non-intervention 

With  the  right  of  independence  goes  the  correlative  ohliga- 
lion  of  non-intervention,  i.e.  of  refraining  from  all  acts  that 
would  forcibly  limit  the  freedom  of  another  state.  This 
obligation  of  non-intervention  does  not  extend  to  the  limita- 
tion of  acts  involving  no  display  or  threat  of  force,  as  in  the 
case  of  mediation  and  arbitration.  Nor  can  it  be  claimed 
that  the  obligation  of  non-intervention  can  be  urged  against 
measures  undertaken  by  a  state  to  preserve  its  fundamental 
right  to  existence.  There  is  no  right  of  intervention,  as  has 
been  sometimes  argued,  though  an  act  of  intervention  may 
be  sometimes  justifiable  in  itself. ^  Intervention  is  the  at- 
tempt of  one  or  more  states,  by  means  of  force,  to  coerce 
another  state  in  its  purely  state  action.  The  making  of  an 
alliance  between  two  may  influence  a  third  state  in  its  action, 
but  it  cannot  be  considered  an  intervention,  nor  is  the  tender 
of  friendly  offices  in  the  settlement  of  a  dispute  to  which  a 
state  is  a  party,  intervention ;  but  when  a  state  directly  inter- 
feres with  the  exercise  of  the  authority  in  another  state  or 
by  another  state,  it  constitutes  intervention.  Intervention 
may  vary  greatly  in  degree  and  in  character,  whether  it  be 
armed  or  diplomatic.  Each  case  must  be  considered  sep- 
arately on  its  merits,  and  if  in  any  degree  a  justifiable  measure, 
it  must  be  on  the  highest  grounds,  and  the  motives  of  the 
intervening  state  must  be  pure.  Wliile  it  is  still  necessary 
to  discuss  the  question  of  intervention  in  its  various  forms, 
yet,  as  Hall  says:  "It  is  unfortunate  that  publicists  have  not 
laid  down  broadly  and  unanimously  that  no  intervention  is 
legal,  except  for  the  purpose  of  self-preservation,  unless  a 
breach  of  the  law  as  between  states  has  taken  place,  or  unless 

» Bonfils,  No.  295;  "Pradier-Fod^re,"  No.  355. 


88  INTERNATIONAL  LAW 

the  whole  body  of  civilized  states  have  concurred  in  authoriz- 
ing it."  1 

4}.    Practice  in  Regard  to  Intervention 

The  nineteenth  century  might  be  called  the  century  of 
interventions,  for  its  whole  political  history  has  been  closely 
related  to  the  application  of  measures  of  intervention  of  the 
most  varied  sort.  Naturally,  all  authorities  do  not  agree 
as  to  the  causes  underlying  the  action  of  the  several  states, 
nor  as  to  the  nomenclature  which  should  be  used  in  describ- 
ing these  measures.  A  review  of  some  of  the  cases  of  inter- 
vention during  the  nineteenth  century  shows  that  while  the 
doctrine  of  non-intervention  has  been  more  and  more  widely 
professed,  the  practice  has  been  strongly  influenced  by  politi- 
cal expediency. 

Intervention  for  any  cause  may  always  be  regarded  by 
the  state  whose  independence  is  impinged  as  a  hostile  act, 
and  a  ground  for  war,  thus  putting  the  matter  outside  the 
international  law  of  peace.^ 

(a)  As  the  right  of  existence  is  the  first  right  of  a  state 
and  universally  admitted,  intervention  may  sometimes  be 
Intervention  ^^^^  ^^  ^  means  of  maintaining  this  existence, 
for  self-  In  such  a  case  it  is  clearly  a  matter  of  policy 

preservation.     ^  ^^  ^-^e  means  which  a  state  shall  use,  and 

if  it  resorts  to  intervention  rather  than  other  means,  it  niust 
have  ample  grounds  for  its  action  in  the  particular  case.  A 
case  of  intervention  on  the  grounds  of  self-preservation  which 
has  caused  much  debate  is  that  of  England  in  the  two  attacks 
upon  Copenhagen  in  1801  and  1807,  on  the  ground  that  it 
was  necessary  for  English  supremacy  of  the  seas,  which 
formed  her  chief  defense,  to  prevent  the  union  of  the  Danish 
forces  with  those  of  the  other  powers.  Intervention  cannot 
be  justified  by  any  appeal  to  general  principles  which  inhere 

»  Hall,  p.  290.  *  Ibid.,  p.  284. 


INDEPENDENCE  89 

in  the  act  itself.  "The  facts  of  intervention  are  acts  of  the 
political  existence  of  states.  Good  or  bad,  according  as  the 
intervention  is  injurious  or  beneficial."  i  Of  intervention  as 
a  method  of  state  action,  Sir  W.  Harcourt  says:  "It  is  a 
high  and  summary  procedure  which  may  sometimes  snatch 
a  remedy  beyond  the  reach  of  law.  Nevertheless,  it  must 
be  admitted  that  in  case  of  Intervention,  as  in  that  of  Revo- 
lution, its  essence  is  illegality,  and  its  justification  is  its  suc- 
cess. Of  all  things,  at  once  the  most  unjustifiable  and  the 
most  impolitic  is  an  unsuccessful  Intervention."  2  Non- 
intervention is  the  obligation  which  international  law  enjoins. 
It  gives  no  sanction  to  a  "right  of  intervention"  which  would 
be  entirely  inconsistent  with  the  right  of  independence.  The 
question  of  intervention  is  one  of  state  policy  only,  and  is 
outside  the  limits  of  the  field  of  international  law.  Inter- 
vention is  a  method  of  state  action  which  is  justifiable  only 
in  rare  cases,  and  less  and  less  justifiable  as  the  growing 
mutual  dependence  of  states  makes  possible  other  methods 
less  open  to  objection.  International  law  at  the  present  day 
undoubtedly  regards  intervention  when  strictly  necessary  to 
preserve  the  fundamental  right  of  the  intervening  state  to 
its  existence  as  a  permissible  act  though  contravening  the 
right  of  independence  in  another  state. 

(6)  As  international  law  must  rest  upon  the  observance 
of  certain  general  principles,  it  may  in  extreme  cases  be 
Intervention  to  ^ecessary  to  intervene  in  order  that  these  prin- 
prevent  uiegai  ciplcs  may  be  respected  by  certain  states  in 
**'*^''  their  dealings  with  other  states  which,  though 

weaker  in  physical  force,  have  equal  rights  in  international 
law.  How  far  any  state  will  act  as  champion  of  the  law  of 
nations  is  a  question  which  it  must  decide  for  itself.  Un- 
questionably international  law  would  look  with  favor  upon 
measures  necessary  for  its  own  preservation. 

>  Bonfils,  No.  295.  '  "Letters  to  Historicus,"  p.  41. 


90  INTERNATIONAL  LAW 

(c)  Some  authorities  have  maintained  that  intervention 
when  sanctioned  by  a  group  of  states  is  justifiable.  It  is 
Intervention  probable  that  a  group  of  states  would  be  less 
by  general  wdlling  to  pursue  an  unjust  course  than  a  single 
sanction.  state,  and  that  intervention  under  such  sanc- 

tion would  be  more  likely  to  be  morally  justifiable.  It  is, 
however,  no  more  legal  than  the  same  act  by  a  single  state; 
and  if  general  consent  is  the  only  sanction,  while  the  act  may 
be  expedient,  advantageous,  and  morally  just,  it  cannot  be 
regarded  as  upheld  by  international  law,  nor  can  a  single  act 
of  this  kind  establish  a  principle.  The  several  cases  of  such 
intervention  under  general  sanction  can  hardly  be  regarded 
as  sufficiently  similar  to  establish  a  principle  even  upon  the 
Eastern  Question  in  Europe.  ^  It  may  be  concluded  that 
while  general  sanction  of  a  considerable  group  of  states  may, 
for  a  given  interference,  free  a  state  from  moral  blame  and 
warrant  the  act  as  a  matter  of  policy,  yet  it  does  not  give  any 
international  law  sanction  for  intervention  by  general  consent. 
{d)  Many  reasons  have  been  advanced  as  justifying  such 

measures  as  intervention, 
onntef^entfon.      (1)  Intervention  to  carry  out  provisions  of 

treaties  of  guaranty  was  formerly  common,  e.g. 
intervention  by  one  state  to  preserve  the  same  form  of  gov- 
ernment in  the  other  or  to  maintain  the  ruling  family.     It  is 

To  carry  out      ^^^  ^^^^  ^^^^  ^^  treaty  can  justify  interference 
treaty  in  the  internal  affairs  of  a  state  not  party  to 

stipulations.        ^^^  ^^^^^^^ 

In  general,  intervention,  because  of  treaty  stipulations, 
even  when  the  state  subject  to  the  intervention  is  a  party 
to  the  treaty,  is  a  violation  of  independence  unless  the  treaty 
provides  for  such  measures,  in  which  case  the  state  has 
become  a  protected  state  or  entered  into  relations  by  which 
it  has  not  full  state  powers.    Such  treaties  must  be  clearly 

>  See  Rolin-Jaequemyns,  R.  D.  I.,  XVIII,  378,  506,  591. 


INDEPENDENCE  91 

state  acts  and  not  acts  of  individuals^ "  who  from  their  posi- 
tion have  the  opportunity  of  giving  to  their  personal  agree- 
ments the  form  of  a  state  act."  i  Wliile  there  is  still 
difference  of  opinion  as  to  the  question  of  intervention  under 
treaty  sanction,  the  weight  of  opinion  seems  to  be  decidedly 
to  the  effect  that  such  intervention  has  no  ground  of  justi- 
fication in  international  law. 

(2)  Intervention  to  preserve  the  balance  of  power,  which  was 
regarded  as  a  necessary  means  for  the  preservation  of  Euro- 
To  preserve  pean  peace,  has  been  considered  as  justifiable 
the  balance  of  till  recent  times.  Since  the  middle  of  the  nine- 
power,  teenth  century  the  position  has  received  less 
and  less  support,  though  advanced  in  behalf  of  the  preserva- 
tion of  the  Turkish  Empire  and  the  adjustment  of  the  Balkan 
states.  In  1854  Great  Britain  and  France,  on  the  appeal  of 
the  Sultan  for  assistance  against  the  Russian  aggressions, 
determined  to  aid  him,  ''their  said  Majesties  being  fully  per- 
suaded that  the  existence  of  the  Ottoman  Empire  in  its  present 
Limits  is  essential  to  the  maintenance  of  the  Balance  of  Power 
among  the  States  of  Europe."  2  The  attitude  at  the  present 
time  is  stated  by  Lawrence.  "The  independence  of  states 
is  not  to  be  violated  on  the  ground  of  possible  danger  to 
some  imaginary  equilibrium  of  political  forces."  ^ 

(3)  Interventions  upon  the  broad  and  indefinite  ground 
of  humanity  have  been  common  and  were  generally  upheld 
Qjj  ^jjg  by  the  writers  to  the  time  of  Vattel.  Since  his 
grounds  of  day  Opposition  to  intervention  of  this  kind  has 
humanity.  gradually  obtained  favor.  What  the  grounds  of 
humanity  are,  and  which  nation's  ideas  of  humanity  shall  be 
accepted  as  standard,  have  been  questions  difficult  to  settle 
to  the  general  satisfaction  of  states.  For  a  state  to  set  itself 
up  as  judge  of  the  actions  of  another  state  and  to  assume  that 

'  Hall,  p.  288.  '  Hertslet,  1181,  1193. 

'  Lawrence,  §  85,  p.  129.     See  also  1  Halleck,  507. 


92  INTERNATIONAL  LAW 

it  has  ^e  right  to  extend  its  powers  to  settling  and  regulating 
affairs  of  morals,  religion,  and  the  relations  of  public  author- 
ity to  the  subjects  in  another  state,  on  the  ground  of  main- 
taining the  rights  of  mankind  as  a  whole,  is  to  take  a  ground 
which  the  conduct  of  any  modern  state,  even  the  most  civil- 
ized, would  hardly  warrant.  While  it  is  admitted  that  a 
state  or  states  may  sometimes  interfere  to  prevent  one  state 
from  unduly  oppressing  another,  as  in  the  intervention  of 
the  powers  in  Greece  in  1827,  yet  it  is  generally  held  that  to 
interfere  because  the  internal  affairs  of  a  given  state  are  not 
conducted  in  a  manner  pleasing  to  the  foreign  state  is  to  give 
a  sanction  to  an  act  that  would  result  in  far  more  evil  than 
good.  Such  intervention  has  often  taken  place.  The  ''  Holy 
Alliance,"  in  attempting  to  guard  Europe  from  "the  curse 
of  Revolution,"  advocated  in  practice  a  most  dangerous  form 
of  intervention.!  Indeed,  much  of  the  European  history  of 
the  nineteenth  century  is  but  a  history  of  successive  inter- 
ventions. In  spite  of  all  this,  as  Walker  says,  "the  rule 
regularly  progresses  towards  more  general  recognition,  that 
non-intervention  in  the  internal  affairs  of  a  state  is  a  law 
which  admits  of  no  exception  to  foreign  powers,  so  long  as 
the  operations  of  that  state  are  confined  in  their  effect  to 
the  limits  of  the  national  territory."  2 

Nevertheless,  the  United  States  interfered  in  the  affairs 
of  Cuba  on  the  ground  of  humanity.  The  President,  in  his 
message  of  April  11,  1898,  said,  after  a  long  statement  of  the 
facts:  "I  have  exhausted  every  effort  to  relieve  the  intoler- 
able condition  of  affairs  which  is  at  our  doors.  Prepared  to 
execute  every  obligation  imposed  upon  me  by  the  Constitution 
and  the  law,  I  await  your  action."  3  By  joint  resolution  of 
Congress  of  April  20,  1898,  demand  was  made  upon  Spain 
to  relinquish  its  authority  in  Cuba,  and  the  President  was 

«  1  Hertslet,  317.     Ibid.,  658.  '  Walker,  p.  151. 

'  Ann.  Cycl.  1898,  p.  159;  U.  S.  For.  Rel.  1898,  p.  760. 


INDEPENDENCE  93 

authorized  to  use  land  and  naval  forces  to  carry  the  resolu- 
tion into  effect.  1 

(4)  In  time  of  civil  war,  on  invitation  of  both  parties,  a 

foreign  state  may  act  as  mediator,  but  unless  the  revolting 

party  has  been  recognized,  this  is  mediation  in 

medfatorin        ^  domestic  sense  rather  than  intervention  in 

civil  war  *^^  sense  of  international  law. 

Under  other  conditions  there  is  a  diversity  of 
view  as  to  the  proper  course  of  action.^  Some  deny  with  Vattel, 
G.  F.  de  Martens,  Heffter,  Fiore,  Bluntschli,  Woolsey,  and 
others  maintain  or  permit  intervention  in  civil  war  at  the 
request  of  one  of  the  parties,  though  some  of  the  authorities 
do  not  permit  intervention  except  on  the  invitation  of  the 
parent  state  and  not  on  that  of  the  rebelling  party.  Blunt- 
schli (§  476)  and  Woolsey  (§  42)  admit  intervention  only  in 
behalf  of  the  party  representing  the  state;  Vattel  and  some 
others  permit  intervention  in  behalf  of  the  party  which  the 
intervening  state  considers  to  have  the  right  of  the  contest, 
thus  opening  the  arbitration  of  the  contest  to  a  foreign  state. 
Both  of  these  positions  are  receiving  less  and  less  of  sanction. 
Intervention  in  behalf  of  the  established  state  implies  a  doubt 
as  to  which  power  within  the  state  is  the  de  facto  power,  and 
as  Hall  says :  "  The  fact  that  it  has  been  necessary  to  call  in 
foreign  help  is  enough  to  show  that  the  issue  of  the  conflict 
would  without  it  be  uncertain,  and  consequently  that  there 
is  a  doubt  as  to  which  side  would  ultimately  establish  itself 
as  the  legal  representative  of  the  state."  ^  It  is  plain  to  see 
that  intervention  in  behalf  of  the  rebelling  party  is  a  viola- 
tion of  the  independence  of  the  existing  state.  It  is  equally 
clear  that  international  law  does  not  give  a  foreign  state  a 
right  to  judge  upon  the  justice  or  merits  of  domestic  questions 
in  another  state. 

The  principle  may  now  be  regarded  as  established  by  both 

I  30  U.  S.  Sts.  at  Large,  738.        '  Bluntschli,  §  477.        ^  Hall,  p.  293. 


94  INTERNATIONAL  LAW 

theory  and  practice  that  the  invitation  of  neither  party  to 
a  domestic  strife  gives  a  right  to  a  foreign  state  to  intervene, 
and  that  no  state  has  a  right  to  judge  as  to  the  merits  of  the 
contest  and  to  interfere  in  behalf  of  the  party  it  thinks  in  the 
right.  Indeed,  intervention  because  of  civil  war  only  is  in 
no  case  justifiable,  though  the  consequences  of  such  a  dis- 
turbance may  warrant  intervention  upon  other  grounds,  i 

(5)  Intervention  on  the  ground  of  financial  transactions  is 
not  now  sanctioned.  A  state  may  make  any  injustice  done 
On  the  ground  ^^^  subjects  by  a  foreign  state  a  matter  of  diplo- 
of  financial  matic  negotiations.  It  has  sometimes  been  held 
r  nsac  ions.  ^j^^^  contracts  running  between  a  state  and  the 
subject  or  subjects  of  another  state  may,  if  violated,  become 
grounds  of  just  intervention,  and  that  the  subjects  had  a 
right  to  demand  action  by  their  sovereign.  This  ground  is 
manifestly  insufficient,  though  each  state  is  judge  as  to  what 
measures  it  will  take  in  a  given  case.  International  law  does 
not  guarantee  the  payment  of  loans  which  are  merely  per- 
sonal transactions  between  the  individual  and  the  state  in 
its  corporate  capacity,  nor  can  the  public  law  of  one  state 
be  expected  to  hold  in  another.  Interference  on  such  grounds 
is  a  matter  of  expediency  and  not  a  matter  of  right. 

(e)  In  general,  the  best  authorities  seem  to  agree  that  at 
the  present  time,  owing  to  the  ease  with  which  other  meas- 
ures may  be  taken,  intervention  can  be  admitted 

Intervention  ,  j.i,        •      i  i      p       ic 

justifiable  only   ^nly  on  the  Single  ground  of  self-preservation, 
on  ground  of      The  numerous  cases  of  intervention  upon  varied 

tion^'^^^^'^^^"  S^o"^^^  amply  show  that  any  other  ground 
would  be  open  to  wide  abuse,  as  has  often  been 
the  case.  For  general  purposes  of  remedy  for  injury  such 
measures  as  retorsion,  reprisals,  embargo,  and  pacific  block- 
ade may  be  taken  when  a  state  deems  it  expedient  and  is 
willing  to   assume   the   responsibility   for    such    measures.^ 

'  1  Hertslet,  664  ff.  « See  Ch.  XV. 


INDEPENDENCE  95 

While  intervention  is,  for  the  sake  of  preserving  the  existence 
of  a  state,  a  justifiable  measure,  it  is  not  a  right,  but  merely 
a  means  sometimes  justifiable  to  preserve  a  right, — the  right 
of  a  state  to  exist,  which  alone  supersedes  the  obligation  of 
non-intervention . 


OUTLINE  OF  CHAPTER  X 
EQUALITY 

44.  EQUALITY   OF  STATES  EXTENDS  ONLY  TO  LEGAL  STATUS. 

45.  INEQUALITIES   AMONG   STATES. 

(a)  Court  precedence  an  old  mark  of  inequality. 

(b)  Various  inequalities  in  matters  of  ceremonial  still  exist. 

(c)  Inequalities  in  weight  of  influence  in  affairs. 

(1)  At  the  present  time  states  classified  on  political  grounds. 

(a)  The  Great  Powers. 

(b)  Instances  of  the  practice  of  the  Great  Powers. 

(c)  Policy  liable  to  change  with  expediency. 

(2)  European  alliances. 

(3)  Influence  of  the  United  States  among  American  states. 


96 


CHAPTER  X 
EQUALITY 

44.     Equality  of  States  Extends  Only  to  Legal  Status 

The  equality  of  states  was  an  early  premise  of  international 
law.  This  equality,  however  wide  may  have  been  its  mean- 
ing, as  interpreted  by  some  of  the  earlier  writers,  can  now 
be  held  to  extend  only  to  legal  status.  A  state  from  its  very 
being  as  a  sovereign  unity  must  be  legally  equal  to  any  other 
state.  Only  those  states  who  are  members  of  the  interna- 
tional circle  are  regarded  as  possessed  of  this  equality  from 
the  point  of  view  of  international  law.  So  far  as  legal  attri- 
butes as  states  extend,  the  states,  members  of  the  international 
circle,  are  equal,  yet  that  their  weight  in  the  world  of  affairs 
may  vary  by  virtue  of  other  circumstances  must  be  admitted. 
The  legal  status  of  states  is  the  same;  regardless  of  the  form  of 
state  organization,  whether  monarchy  or  republic;  regardless 
of  origin,  whether  by  division  or  union  of  former  states  or 
even  if  created  in  a  region  hitherto  outside  the  jurisdiction 
of  any  state;  regardless  of  area,  population,  wealth,  influence, 
etc.;  regardless  of  relations  to  other  states  provided  sover- 
eignty is  not  impaired;  regardless  of  any  change  in  the  form 
of  state  organization,  as  from  a  republic  to  a  monarchy  or 
even  of  a  temporary  lapse  in  the  exercise  of  sovereignty. 

45.     Inequalities  among  States 

While  all  states,  members  of  the  family  of  states,  are  equal 
in  international  law  so  far  as  their  legal  attributes  are  con- 
cerned, they  may  be  very  unequal  in  other  respects. 

97 


98  INTERNATIONAL  LAW 

(a)  One  of  the  oldest  marks  of  inequality  is  that  of  court 
precedence,  which  for  many  years  was  a  fertile 
ence  an  old        source  of  difficulty,  and  was  at  last  settled  to  the 
mark  of  extent  of  ranking  by  title  of  diplomatic  repre- 

sentative by  the  Congress  of  Vienna  in  1815. ^ 
(6)  Inequalities  in  matters  of  ceremonial  of  various  kinds 
have  not  disappeared.  These  may  be  based  upon  tradition, 
or  conventional  grounds,  and  frequently  give 
inTquaUties  in  ^^^^  ^^  difficulties  if  disregarded.  These  cere- 
matters  of  monials  may  be  (1)  political  as  between  the 
*^ni™°rt  sovereigns  in  their  official  personal  capacity  as 

emperors,  kings,  dukes,  etc.,  (2)  court  and 
diplomatic  in  interstate  negotiations,  (3)  treaty  as  in  altemat 
or  in  the  alphabetical  signing  of  treaties,  (4)  maritime  cere- 
monial in  salutes,  etc. 

(c)  Inequalities  in  weight  of  influence  in  affairs. 
(1)  In  Europe  there  is  distinctly  recognized  in  political 
practice  an  inequality  of  the  states,  and  they  are  classed  as 
"the  great  powers,"  "the  minor  powers,"  and 

Inequalities  m  u  x  / 

weight  of  in-  Sometimes  such  states  as  those  of  the  Balkan 
fluence  in  peninsula  are  referred  to  as  "the  little  powers" 

or  "third-rate  states."  These  divisions  are 
based  merely  upon  political  grounds,  and  states  may  pass 
from  one  division  to  another  as  their  wealth,  area,  or  in- 
fluence increases  or  decreases. 

At  the  present  time  "the  great  powers,"  generally  men- 
tioned officially  upon  the  continent  in  the  alphabetical  order 
At  the  present  ^^  ^^^^^  names  in  French,  i.e.  Allemagne,  Angle- 
time  states  terre,  Autriche,  etc.,  are  Germany,  Great  Britain, 
classified  on      Austria,  France,  Italy,  and  Russia.     During  the 

political  '  J  ./  7  ^  o 

grounds;  the  sixteenth  and  seventeenth  centuries  Spain  was 
Great  Powers,  numbered  with  "the  great  powers."  Sweden 
was  so  ranked    in    the    seventeenth    century.     Italy  was 

«  See  Sec.  72  (6). 


EQUALITY  99 

counted  with  "the  great  powers"  after  1870.  The  union  of 
several  powers  upon  certain  lines  of  policy,  since  early  in  the 
nineteenth  century,  has  been  called  "the  concert  of  Europe," 
"  the  primacy  of  the  great  powers,"  etc.  It  was  not  the  pur- 
pose of  these  great  powers  to  establish  new  rules  of  interna- 
tional law;  but  as  enunciated  by  the  five  powers,  November 
15,  1818,  it  was  "  their  invariable  resolution  never  to  depart, 
either  among  themselves,  or  in  their  relations  with  other 
states,  from  the  strictest  observation  of  the  principles  of  the 
Rights  of  Nations."  ^ 

That  the  practice  of  the  Great  Powers  has  not  been  strictly 

in  accord  with  these  expressed  principles,  a  glance  will  show. 

The  immediate  action  of  Austria,  Russia,  and 

Illstj3jIlC65  of 

the  practice  of  Prussia  in  the  Congress  of  Troppau,  1820,  car- 
the  Great  pj^d  the  principle  of  interference  in  the  internal 

PcwGrs 

affairs  of  states  so  far  that  Great  Britain  found 
itself  compelled  to  dissent.  This  continuance  of  the  policy  of 
the  Holy  Alliance  in  putting  down  movements  in  favor 
of  popular  liberty,  wherever  arising,  led  to  gross  violations  of 
international  rights.  Nor  did  Great  Britain  become  a  party 
to  the  acts  of  the  Congress  of  Verona  in  1822,  which  led  to 
intervention  to  prevent  changes  in  the  internal  organization 
of  Spain  in  1823.  The  struggles  of  the  Greeks  for  independ- 
ence at  about  this  time  were  naturally  regarded  by  those 
upholding  the  ideas  of  the  Holy  Alliance  as  dangerous  to  those 
states  desiring  to  prevent  revolutionary  movements.  But 
the  narrow  policy  of  the  Alliance  was  gradually  losing  sup- 
port. The  opposition  of  Great  Britain  and  the  death  of 
Alexander  of  Russia  in  1825  hastened  its  speedy  fall.  Mean- 
time the  idea  of  a  collective  authority  in  the  Great  Powers 
had  been  maintained.  This  began  to  be  exercised  in  behalf 
of  the  Greeks  in  1826,  and  throughout  the  nineteenth  centuiy 
was  repeatedly  exercised  in  the  same  behaK,  sometimes  un- 

1 1  Hertslet,  574. 


100  INTERNATIONAL  LAW 

selfishly,  often  from  motives  of  mixed  character.  During  the 
latter  half  of  the  nineteenth  century  the  Great  Powers  con- 
tinually kept  a  close  surveillance  over  Grecian  affairs,  and 
enforced  their  judgments  in  regard  to  Greece  by  force  (de- 
struction of  Turkish  fleet  at  Navarino,  1827);  by  providing 
form  of  government  and  naming  monarch  (1829  and  later); 
by  fixing  and  changing  boundaries  (1829  and  often);  by 
pacific  blockade  (1827,  1850,  1886,  1897) ;  by  regulating  finan- 
cial affairs,  and  by  other  means  of  varying  degree  of  force. ^ 

The  Eastern  question  has  particularly  occupied  the  Con- 
cert, and  the  disposition  of  the  territory  once  within  the 
Turkish  jurisdiction  has  offered  a  fertile  field  for  varying 
policy. 

The  establishment  of  Belgium  as  a  neutral  state  by  the 
treaty  to  which  Belgium  was  itself  a  party  afforded  another 
example  of  the  influence  of  the  Great  Powers. 

Since  1839  Egypt  has  also  been  subject  to  frequent  control 
by  the  Great  Powers. 

Since  1885  the  unappropriated  portion  of  Africa  has  been 
brought  within  the  range  of  action  of  the  Concert  by  the  theory 
of  the  sphere  of  influence. 

The  Concert  of  the  Great  Powers  shows  then  a  policy  which 
is  liable  to  change  with  expediency.  The  two  great  treaties 
Policy  liable  °^  ^^^  Concert  are  those  of  Paris,  1856,  and 
to  change  with  Berlin,  1878.  Of  these  Holland  says:  ''The 
expe  lency.  treaties  of  Paris  and  of  Berlin  thus  resemble 
one  another,  in  that  both  alike  are  a  negation  of  the  right 
of  any  one  Power,  and  an  assertion  of  the  right  of  the  Powers 
collectively,  to  regulate  the  solution  of  the  Eastern  question."  ^ 
The  fact  that  the  action  of  the  Great  Powers  has  been  re- 
garded as  binding  and  tacitly  accepted  in  Europe  in  certain 
questions  in  the  East,  Egypt,  Greece,  and  Belgium  does  not  give 

^  For  detailed  summary,  1826-1881,  see  Holland,  "European  Concert  in 
the  Eastern  Question,"  Ch.  II. 

^  "European  Concert  in  the  Eastern  Question,"  p.  221. 


EQUALITY  101 

the  sanction  of  international  law  to  the  action.  The  most  that 
can  be  said  is  that  it  is  an  alliance  of  a  loose  character,  whose 
authority  is  in  proportion  to  the  force  behind  its  decisions. ^ 

(2)  Another  feature  in  European  politics  giving  rise  to 
further  inequalities  in  practice  was  introduced  by  the  alliance 

of  Germany  and  Austria  in  1879  and  Italy  in 

ai]Snces°  1883,  which  is  now  commonly  known  as  the 

Triple  Alliance.     This  belt  of  powers  separating 

Eastern  from  Western  Europe  has  materially  affected  the 

action  of  other  powers. 

The  "friendly  understanding"  between  France  and  Russia 
soon  after  the  Triple  Alliance  affords  a  measure  of  counter- 
check upon  the  action  of  the  other  powers. 

The  exact  terms  of  this  compact  of  Germany,  Austria- 
Hungary,  and  Italy  have  never  been  divulged,  although  co- 
operation is  assured  in  the  event  of  hostile  relations  with 
Russia  or  France.  The  alliance  does  not  prevent  friendly 
relations  between  the  parties  to  it  and  the  other  powers. 

In  spite  of  all  these  alliances  and  counter-alliances,  the 
recognition  of  the  weight  of  the  decisions  of  the  congresses 
and  conferences  of  the  Great  Powers  upon  those  subjects 
which  are  held  to  affect  "the  peace  of  Europe"  has  an 
influence  comparable  to  that  which  might  be  assigned  to  a 
"Supreme  Court  of  International  Appeal."  ^ 

(3)  The  United  States  upon  the  American  continent  in  its 

enunciation  of  the  Monroe  Doctrine,  and  in  the 

Influence  of  i  i    •    i  i    i  •  /•   -^     i  ^ 

the  United  Subsequent  mterpretation  oi  it,  has  assumed  a 
states  among  position  as  arbiter  among  the  American  states 
American  -^^  some  respects  similar  to  that  of  the  European 

Concert  among  the  European  states.  This  atti- 
tude of  the  United  States  has  weight  in  international  practice, 
but  cannot  be  regarded  as  a  part  of  international  law, 

^  Lawrence,  "Disputed  Questions,"  V. 

'  Lawrence,  "Disputed  Questions,"  V,  end. 


OUTLINE  OF  CHAPTER  XI 
JURISDICTION 

46.  JURISDICTION   IN   GENERAL. 

47.  TERRITORIAL   DOMAIN   AND   JURISDICTION. 

48.  METHOD  OF  ACQUISITION  OF  TERRITORIAL  JURISDICTION. 

(a)  By  right  of  discovery  of  a  new  land. 

(b)  By  eflEective  and  continued  occupation  of  a  territory. 

(1)  The  Hinterland  Doctrine. 

(2)  Uncivilized  peoples  the  rightful  occupants  of  the  soil. 

(c)  By  conquest  of  a  territory,  usually  a  result  of  military  occupation. 

(d)  By  cession  through  the  transfer  of  territory. 

(1)  By  gift. 

(2)  By  exchange. 

(3)  By  sale. 

(4)  By  special  agreement. 

(e)  By  prescription,  or  long-continued  possession. 

(f)  By  accretion,  or  change  in  land  areas  near  the  boundary  of  a  state. 

49.  QUALIFIED    TERRITORIAL   JURISDICTION. 

(a)  In  protectorates  the  external  affairs  and  international  relations 

are  usually  imder  the  direction  of  the  protecting  state. 

(b)  In  a  sphere  of  influence  the  aim  is  to  secure  the  rights  without 

all  the  obligations. 

50.  MARITIME   AND   FLUVIAL   JURISDICTION. 

51.  JURISDICTION   OF    RIVERS. 

(a)  Rivers  which  traverse  only  one  state. 

(b)  Rivers  which  traverse  two  or  more  states. 

(c)  Rivers  with  opposite  banks  imder  jurisdiction  of  two  different 

states. 

102 


62.     THE   NAVIGATION   OP    RIVERS. 

(a)  General  rules  for  river  navigation. 

(b)  Confirmation  of  rules  by  conventions. 


53.     JURISDICTION  OP   ENCLOSED   WATERS. 

(a)  Exclusive  jurisdiction  of  a  state  over  the  waters  wholly  within 

its  borders. 

(b)  Jurisdiction  over  gulfs,  bays,  and  estuaries  in  the  state  or  states 

enclosing  them. 

(c)  Jurisdiction  over  straits  less  than  six  miles  in  width  in  the  shore 

state  or  states. 

(1)  Jurisdiction  over  the  Danish  sounds. 

(2)  The  Bosphorus  and  Dardanelles. 

(d)  JiKisdiction  of  canals  similar  to  that  of  straits. 

(1)  The  Suez  Canal. 

(2)  The  Panama  Canal. 

(3)  The  Corinth  and  Kiel  Canals. 

64.     THE   THREE-MILE    LIMIT. 

(a)  Statement  and  origin  of  the  principle. 

(b)  A  wider  limit  sometimes  claimed  for  special  purposes. 


66.     JURISDICTION   OVER   FISHERIES. 

(a)  Pishing  on  the  high  sea  a  right  belonging  to  all  states  alike. 

(b)  Special  privileges  in  fishing,  as  in  the  case  of  the  Canadian 

fisheries. 

(c)  The  disputed  question  of  seal-fishing  in  the  Bering  Sea. 


66.     JURISDICTION   OVER   VESSELS. 

(a)  Two  classes  of  vessels. 

(1)  Public. 

(2)  Private. 

(b)  Nationality  of  a  vessel  determined  by  its  flag  or  papers. 

(c)  General  exercise  of  jurisdiction  over  vessels. 

(1)  Exclusive  over  public  and  private  vessels  on  high  seas  and 
in  home  waters. 

103 


66.  JURISDICTION  OVER  YESSELS.— Continued. 

(2)  Exclusive  over  public  vessels  in  foreign  waters  in  regard  to 

matters  of  internal  economy, 

(a)  Extent  of  immunities  of  the  persons  on  a  ship  of  war 

in  a  foreign  harbor. 
(6)  The  right  of  asylum  on  board  a  ship  of  war, 
(c)  Immunities  of  other  vessels  in  public  service, 

(3)  Varying  over  private  vessels  in  foreign  waters, 

(4)  Special  exemption  of  semi-public  vessels, 

67.  AERIAL  JURISDICTION. 

68.  JURISDICTION  OVER  PERSONS  AND  THE  QUESTION  OF 

NATIONALITY, 

69.  JURISDICTION   OVER   NATURAL-BORN   SUBJECTS. 

60.  JURISDICTION   OVER   FOREIGN-BORN   SUBJECTS. 

(a)  The  rule  of  jus  sanguinis,  i.e.,  the  child  inherits  the  nationality 

of  his  father. 

(b)  The  rule  of  jus  soli,  i.e.,  the  place  of  birth  determines  the  na- 

tionality. 

(c)  Variations  in  laws, 

61.  JURISDICTION  BY  VIRTUE  OF  ACQUIRED  NATIONALITY, 

(a)  By  marriage  a  woman  in  most  states  acquires  the  nationality  of 

her  husband. 

(b)  By  naturalization,  or  an  act  of  sovereignty  by  which  a  foreigner 

is  admitted  to  citizenship  in  another  state. 

(c)  By  annexation  of  the  territory  upon  which  a  person  resides. 

(d)  The  effect  of  naturalization  on  a  person  in  his  relations  to  his 

adopted  and  native  states. 

(e)  Incomplete  naturalization  or  the  effect  on  a  person  of  his  declara- 

tion of  intention  to  become  a  citizen. 

(1)  Case  of  Martin  Koszta. 

(2)  Citizenship  and  liability  to  military  service. 

(3)  Municipal  laws  and  naturalization, 

104 


62.  JURISDICTION   OVER  ALIENS. 

(a)  Qualified  jurisdiction  of  native  state  over  subjects  abroad. 

(1)  Right  to  make  emigration  laws. 

(2)  Recall  of  citizens  for  special  reasons. 

(3)  Penal  jurisdiction  over  subjects  who  have  committed  crimes 

in  a  foreign  state. 

(4)  Protection  of  subjects  in  a  foreign  state. 

(b)  Jurisdiction  of  a  state  over  aliens  within  its  territory. 

(1)  Right  of  exclusion. 

(2)  Right  of  expulsion. 

(3)  Right  to  conditional  admission. 

(4)  Restrictions  upon  settlement. 

(5)  Right  to  levy  taxes. 

(6)  Sanitary  and  police  jurisdiction. 

(7)  Penal  jurisdiction  for  crimes  committed  within  territorial 

limits. 

(8)  Maintenance  of  public  order. 

(9)  No  right  to  demand  military  service  for  political  ends. 

(10)  Freedom  of  commerce. 

(11)  Holding  and  bequeathing  of  property. 

(12)  Freedom  of  speech  and  worship. 

(c)  Passport  a  means  for  establishing  the  identity  of  an  alien. 

63.  EXEMPTIONS  FROM  LOCAL  JURISDICTION  GENERALLY  MADE 

FOR     PERSONS     REPRESENTING     THE     AUTHORITY     OF    A 
FRIENDLY    STATE. 

(a)  Exterritoriality,  or  immimity  from  jurisdiction. 

64.  EXEMPTION    FROM     LOCAL    JURISDICTION    OF     SOVEREIGNS 

SOJOURNING  IN  THEIR  OFFICIAL  CAPACITY  IN  FOREIGN 
COUNTRIES. 

65.  EXEMPTIONS   OF   STATE   OFFICERS. 

(a)  Wide  immimity  allowed  diplomatic  agents. 

(b)  Exemptions  granted  to  consuls  to  facilitate  effective  performance 

of  their  duties. 

(c)  A  foreign  army  entering  a  state,  by  permission  of  its  sovereign, 

is  free  from  that  sovereign's  jurisdiction. 

(d)  A  vessel  of  war  in  a  foreign  state  free  from  local  jurisdiction. 

105 


66.  SPECIAL  EXEMPTIONS. 

(a)  In  certain  Oriental  states  special  exemptions  regulated  by  treaty. 

(1)  General  rules  in  regard  to  penal  matters. 

(2)  General  rules  in  regard  to  civil  matters. 

(b)  Mixed  courts  in  Egypt. 

67.  EXTRADITION. 

(»)  Persons  liable  to  extradition  vary  according  to  treaties. 

(b)  Limitations  as  to  jurisdiction  over  a  person  extradited. 

(c)  Conditions  necessary  for  a  claim  for  extradition. 

(d)  Procedure  in  cases  of  extradition  based  on  definite  principles. 

68.  SERVITUDES. 

(a)  International  servitudes,  positive  and  negative. 

(b)  General  servitudes. 


106 


CHAPTER  XI 
JURISDICTION 

46.     Jurisdiction  in  General 

Jurisdiction  is  the  right  to  exercise  state  authority,  and 
for  the  purposes  of  international  law  may  be  classified  as 
(a)  territorial  or  land  jurisdiction,  (b)  fluvial  and  maritime, 
(c)  aerial,  and  (d)  jurisdiction  over  persons. 

47.     Territorial  Domain  and  Jurisdiction 

The  word  "territory"  is  sometimes  used  as  equivalent 
to  domain  or  dominion  or  to  an  expression  covering  the 
sphere  of  state  control.  Territory  is  also  used  in  the  stricter 
sense  of  the  land  area  over  which  a  state  exercises  its  powers. 
In  this  stricter  sense,  territorial  jurisdiction  refers  to  the 
exercise  of  state  authority  over  the  land  within  its  boundaries 
and  those  things  which  appertain  to  the  land.  The  growing 
international  importance  of  railroads,  telegraph,  and  other 
modern  means  of  communication  has  introduced  new  topics 
which  were  not  considered  in  early  treatises,  and  are  still 
under  discussion. 

The  fundamental  law  of  territorial  jurisdiction  is  that  a 
state  has  within  its  boundaries  absolute  and  exclusive  juris- 
diction over  all  the  land  and  those  things  which  appertain 
thereto.  Certain  exemptions  are  specially  provided  in  inter- 
national law  to  which  all  states  are  considered  as  giving 
express  or  tacit  consent.  In  other  respects  than  those  men- 
tioned under  exemptions,  the  state  may,  as  sovereign,  exercise 

107 


108  INTERNATIONAL  LAW 

its  authority  at  discretion  within  the  sphere  it  has  set  for 
itself.  The  state  has,  as  against  all  other  states,  an  exclusive 
title  to  all  property  within  its  territorial  jurisdiction.  As 
regards  its  own  subjects,  it  has  the  paramount  title  which  is 
recognized  in  the  right  of  eminent  domain,  or  the  right 
to  appropriate  private  property  when  necessary  for  public 
use,  A  state  may  also  in  its  corporate  capacity  hold 
absolute  ownership  in  property,  as  in  its  forts,  arsenals, 
ships,  etc. 

The  state  also  has  the  right  to  enforce  a  lien  on  the  land 
and  what  appertains  to  it  in  the  form  of  taxes. 

48.     Method  of  Acquisition 

The  method  of  acquisition  of  territorial  jurisdiction  is  a 
subject  which  has  received  much  attention  in  international 
law,  particularly  because  of  the  remarkable  e;xpansion  of 
the  territorial  area  of  states  within  the  modern  period  of 
international  law  since  1648. 

The  methods  commonly  considered  are:  (1)  discovery,  (2) 
occupation,  (3)  conquest,  (4)  cession,  (5)  prescription,  (6) 
accretion. 

(a)  In  the  early  period  of  European  expansion  through 
discovery,  the  doctrine  that  title  to  land  hitherto  unknown 
By  ri  ht  of  Vested  in  the  state  whose  subject  discovered  the 
discovery  of  land  was  current.  Gross  abuse  of  this  doctrine 
a  new  land.  j^^  ^^  ^j^^  modification  that  discovery  without 
occupation  did  not  constitute  a  valid  title.  As  the  field  of 
discovery  has  grown  less,  the  importance  of  a  definition  of 
occupation  has  decreased. 

(6)  Occupation  is  held  to  begin  at  the  time  of  effective 
application  of  state  authority,  and  strictly  continues  only 
during  the  exercise  of  such  authority.  In  fact,  however,  the 
title  by  occupation  is  held  to  extend  to  the  adjacent  unoccu- 
pied territory  to  which  the  state  might   potentially  extend 


JURISDICTION  109 

the  exercise  of  its  authority,  or  where  it  may  from  time  to 
time  exercise  its  authority  in  an  undisputed  manner.     Title 

by  occupation  extends  as  a  rule  to  that  area, 
and  continued    ^ot  Under   the   jurisdiction   of   another   state, 
occupation  of  a  which  is  necessary  for  the  safety  of  the  occupied 
ern  ory,  ^^^^  ^^  .^  naturally  dependent  upon  it,  as  to 

the  territory  drained  by  a  river  of  which  a  given  state  holds 
the  mouth. 

The  "Hinterland  Doctrine,"  brought  forward  during  the 
later  years  of  the  nineteenth  century,  advances  the  idea 
that  no  such  limits  as  above  shall  bound  the  area  which 
can  be  claimed  on  ground  of  occupation,  but  that  coast 
settlements  give  a  prima  facie  title  to  the  unexplored  interior. 
While  the  uncivilized  peoples  living  within  an  area  to 
which   a   civilized   state   claimed  jurisdiction  by   virtue   of 

occupancy  were  often  unjustly  treated,  they 
peoples  ttie  however  "  were  admitted  to  be  the  rightful  occu- 
rightfui  occu-  pants  of  the  soil,  with  a  legal  as  well  as  just 
pants  of  the       claim  to  retain  possession  of  it,  and  to  use  it 

according  to  their  own  discretion,  though  not 
to  dispose  of  the  soil  of  their  own  will,  except  to  the  govern- 
ment claiming  the  right  of  preemption.  .  .  .  The  United 
States  adopted  the  same  principle,  and  their  exclusive  right 
to  extinguish  the  Indian  title  by  purchase  or  conquest,  and 
to  grant  the  soil,  and  exercise  such  a  degree  of  sovereignty 
as  circumstances  required,  has  never  been  questioned."  ^ 
(c)  Conquest  in  the   technical  sense  of  the  status  of  a 

territory  which  has  come  permanently  under 
a  territory^  °  the  jurisdiction  of  the  enemy  is  distinct  from 
usually  a  result  military  occupation,  which  is  a  simple  fact  sup- 

of  military  ^^^^^  ^     ^^^^^ 

occupation.  . 

Military  occupation  may  pass  into  conquest 
(I)  by  actual  occupation  for  a  long  period,  with  intention  on 

'  3  Kent  Com.  379,  3S0;  1  Gould  and  Tucker,  484, 


no  INTERNATIONAL  LAW 

the  part  of  the  occupier  to  continue  the  possession  for  an  in- 
definite period,  provided  there  has  not  been  a  continued  and 
material  effort  upon  the  part  of  the  former  holder  to  regain 
possession.  If,  after  a  reasonable  time,  this  effort  to  regain 
possession  seems  futile,  the  conquest  may  be  regarded  as  com- 
plete. Each  state  must  judge  for  itself  as  to  the  reasonable- 
ness of  the  time  and  futility  of  the  effort.  (2)  Conquest  may 
be  said  to  be  complete  when  by  decree,  in  which  the  in- 
habitants acquiesce,  a  subjugated  territory  is  incorporated 
under  a  new  state.  (3)  A  treaty  of  peace  or  act  of  cession 
may  confirm  the  title  by  conquest,  i 

(d)  Transfer  of  territory  by  cession  may  be  by  gift,  ex- 
By  cession         change,  Sale,  or  other  agreement, 
through  (1)  The  transfer  by  gift  is  simple,  and  carries 

'^^ift'^exchan  e  ^^^^  obligations  as  the  parties  interested  may 
sale,  or  other  Undertake.  In  1850,  by  a  treaty  with  Great 
agreement.  Britain,  ''Horse-shoe  Reef,"  in  Lake  Erie,  was 
ceded  to  the  United  States  for  the  purpose  of  the  erection 
of  a  lighthouse,  "provided  the  Government  of  the  United 
States  will  engage  to  erect  such  lighthouse,  and  to  maintain 
a  light  therein;  and  provided  no  fortification  be  erected  on 
said  Reef."  2 

(2)  Transfer  of  territory  by  exchange  is  not  common  in 
modern  times.  By  the  Treaty  of  Berlin,  1878,  a  portion  of 
Bessarabia,  given  to  Roumania  by  the  Treaty  of  Paris,  1856, 
was  given  back  to  Russia,  and  Roumania  received  in  exchang-e 
a  portion  of  Turkey. ^ 

(3)  Transfer  of  territory  by  sale  has  been  frequent.  From 
1311,  when  the  Markgraf  of  Brandenburg  sold  three  villages 
to  the  Teutonic  knights,  down  to  the  nineteenth  century, 
instances  of  sale  might  be  found,  but  the  nineteenth  century 

'  In  case  of  the  United  States,  while  the  President  may  after  declaration 
of  war  conquer  and  hold  foreign  territory,  the  joint  action  of  the  President 
and  Senate  is  necessary  to  make  the  title  complete  by  treaty. 

^  Treaties  of  U.  S.  444.  »  Woolsey,  496;  Hertslet,  2745,  2791. 


JURISDICTION  111 

has  numerous  instances  which  have  established  the  principles. 
Napoleon  sold  Louisiana  to  the  United  States  in  1803,  the 
Prince  of  Monaco  made  a  sale  to  France  in  1851,  Russia  sold 
Alaska  to  the  United  States  in  1867,  the  Netherlands  sold 
African  colonies  to  Great  Britain  in  1872,  Sweden  sold  the 
island  of  St.  Barthelemy  to  France  in  1877,  the  United  States 
bought  the  Philippines  in  1898.  The  fact  of  the  sale  is  not 
a  matter  of  international  law,  but  is  purely  within  the  range 
of  the  public  law  of  the  countries  concerned.  The  change  of 
jurisdiction  of  the  area  gives  rise  to  certain  possible  compli- 
cations which  may  involve  principles  of  international  law, 
though  generally  the  conditions  of  sale  settle  such  questions. 

(4)  Cession  of  jurisdiction  over  a.  given  portion  of  territory 
as  surety  for  the  performance  of  a  certain  act,  by  lease,  by 
annexation  agreements,  as  payment  of  an  indemnity  or  the 
like,  are  methods  of  acquiring  temporary  jurisdiction  which 
frequently  becomes  permanent. 

(e)  Prescription,  or  the  acquisition  of  territory  by  virtue 

of  long-continued  possession,  is  similar  to  prescription  in 

.    .      public   law   as   applied  to  the   acquisition   of 

By  prescription,  '■  mi  . 

or  long-con-  property  by  persons.  The  recognition  of  this 
tinued  principle  prevents  many  disputes  over  jurisdic- 

tion of  territory  which  originally  may  have 
been  acquired  in  a  manner  open  to  question,  e.g.  the  hold- 
ing of  the  territory  by  the  states  parties  to  the  partition  of 
Poland  may  through  long-continued  possession  be  valid  by 
prescription  if  not  by  the  original  act. 

In  regard  to  prescription,  it  should  be  observed  that  (1) 
it  is  a  title  valid  only  against  other  states.  The  inhabitants 
do  not  necessarily  lose  rights  originally  possessed.  (2)  This 
method  avoids  perpetual  conflicts  on  ground  of  defect  of 
original  title.  (3)  Prescription  may  be  considered  as  effective 
when  other  states  have  for  a  considerable  time  made  no 
objection,  threatening  the  exercise  of  jurisdiction  by  the  state 


112  INTERNATIONAL  LAW 

in  possession.  While  some  authors  deny  this  right,  it  is 
generally  admitted  in  fact,  and  by  most  of  the  leading  authori- 
ties acknowledged  in  theory. i 

(/)  When  land  areas  in  the  neighborhood  of  the  boundary 
of  a  state  are  changed,  territory  may  be  acquired  by  accre- 
tion. (1)  Land  formed  by  alluvium  or  other 
o/change'i'n'  causo  near  the  coast  of  a  state  is  held  to  belong 
land  areas  near  to  that  state.  Lord  Stowell,  in  1805,  held  that 
of  a  state  ^^^  ^^ud  islands  formed  by  alluvium  from  the  Mis- 
sissippi River  should  for  international  law 
purposes  be  held  as  part  of  the  United  States  territory.^ 
In  general,  alluvium  becomes  the  property  of  the  state  to 
which  it  attaches,  following  the  Roman  law.^  (2)  Where 
a  river  is  the  boundary,  the  rule  is  well  established  that 
islands  formed  on  either  side  of  the  deepest  channel  be- 
long to  the  state  upon  that  side  of  the  channel;  an  island 
formed  mid-stream  is  divided  by  the  old  channel  line.  (3) 
WTien  a  river's  channel  is  suddenly  changed  so  as  to  be 
entirely  within  the  territory  of  either  state,  the  boundary 
line  remains  as  before  in  the  old  channel.  So  also  the  bound- 
ary line  of  territory  is  not  changed,  even  if  the  bed  of  a  lake 
be  changed.'* 

49.     Qualified  Territorial  Jurisdiction 

Two  degrees  of  qualified  territorial  jurisdiction  are  exer- 
cised in  the  protectorate  and  the  sphere  of  influence.   - 

(a)  The  protecting  state  usually  acquires  the  jurisdiction 
over  all  external  affairs  of  the  protected  community,  often 
including  territorial  waters,  and  assumes  the  direction  of  its 
international  relations.  A  measure  of  jurisdiction  of  those  in- 
ternal affairs  which  may  lead  to  international  complications 

'  See  discussion  in  Hall,  note  1,  p.  120. 

'  The  "Anna,"  5  C.  Rob.,  373;  Scott,  684.  '  "institutes,"  11,  1,  20. 

*  Cooley  V.  Golden,  52  Mo.  App.  52;  Scott,  129;  Missouri  v.  Nebraska, 
196  U.  S.  23;  Nebraska  v.  Missouri,  197  U.  S.  577, 


JURISDICTION  113 

is  also  generally  assumed  by  the  protecting  state,  e.g.  treat- 
ment of  foreigners  in  the  protected  territory,  relations  of  pro- 
tected subjects  in  foreign  countries,  use  of  flag, 
In  protect-        ^^^^     rpj^^  Conditions  of  protected  states  vary 

orates.  "^  ,      ,  *' 

greatly,  hardly  the  same  description  holding  for 
any  two.  It  may  be  safe  to  say  that  (1)  the  protecting  state 
cannot  be  held  responsible  for  the  establishment  of  any  par- 
ticular form  of  government ;  (2)  a  reasonable  degree  of  secur- 
ity and  justice  must  be  maintained.  As  to  what  constitutes 
a  "reasonable  degree,"  the  circumstances  of  each  case  must 
determine;  then  the  protecting  state  is  bound  to  afford  such 
justice  and  security  and  (3)  must  be  able  to  exercise  within 
the  protected  area  such  powers  as  are  necessary  to  meet  its 
responsibilities. 

(6)  The  term  "sphere  of  influence"  has  been  used  since 
the  Berlin  Conference,  1884-1885,  to  indicate  a  sort  of 
attenuated  protectorate  in  which  the  aim  is  to 
oHnfluence  secure  the  rights  without  the  obligations.  First 
applied  to  Africa  in  the  partition  of  the  unex- 
plored interior  among  the  European  powers — Great  Britain, 
Germany,  France,  Italy,  Portugal — it  has  since  been  ex- 
tended to  other  regions.  This  doctrine  of  mutual  exclusion 
of  each  from  the  "spheres"  of  all  the  others  cannot  be  held 
to  bind  any  states  not  party  to  the  agreement. 

The  method  of  exercise  of  "influence,"  while  varying, 
usually  consists  in  making  with  the  native  chiefs  treaties 
which  convey  privileges  other  than  the  cession  of  sovereignty. 
These  privileges  are  often  commercial,  and  may  be  with  the 
state  direct  or  agreements  with  some  company  to  whom  the 
state  has  delegated  a  portion  of  its  authority,  as  in  the  African 
trade  companies. 

The  "spheres  of  influence,"  gradually  with  the  growth  of 
power  of  the  influencing  state  and  the  necessity  of  protect- 
ing the  "sphere,"  against  other  states,  become  less  vague  ia 


114  INTERNATIONAL  LAW 

their  relations  to  the  influencing  state  and  merge  into  pro- 
tectorates or  some  other  more  stable  condition. 

This  "sphere  of  influence"  idea,  as  well  as  the  "Hinterland 
Doctrine,"  can  be  of  only  temporary  importance,  owing  to 
the  limited  area  still  open  to  occupation.  It  is  maintained 
that  within  the  "sphere"  the  influencing  state  has  jurisdic- 
tion to  the  exclusion  of  another  state,  and  that  it  has  a  right 
to  occupy  the  territory  later,  if  advisable.  The  influencing 
state  disclaims  all  obligations  possible. ^ 

50.     Maritime  and  Fluvial  Jurisdiction 

Wheaton  states  as  a  general  principle  of  maritime  and 
fluvial  jurisdiction:  "Things  of  which  the  use  is  inexhaustible, 
such  as  the  sea  and  running  water,  cannot  be  so  appropriated 
as  to  exclude  others  from  using  these  elements  in  any  manner 
which  does  not  occasion  a  loss  or  inconvenience  to  the  pro- 
prietor." 2  While  the  tendency  of  international  policy  is 
toward  unrestricted  freedom  of  river  navigation,  yet  the 
principle  as  enunciated  by  Wheaton  cannot  be  said  to  be 
established  in  practice.  The  American  and  Continental 
writers  have  generally  favored  the  principle  enunciated  by 
Wheaton.  English  writers  have  contended  against  this  posi- 
tion as  a  right,  but  admit  that  the  principle  is  becoming 
established  by  numerous  treaties  and  conventions.  As  to 
the  sea,  the  principle  may  be  said  to  be  established. 

51.     Jurisdiction  of  Rivers 

The  jurisdiction  of  rivers  is  a  question  which  is  not  identi- 
cal with  the  right  of  navigation  of  rivers,  and  may  best  be 
considered  apart.  The  question  of  jurisdiction  is  one  of 
general  international  principl-e,  while  the  question  of  river 

'See  Lawrence,  153,  161,  164-167;  Reinsch,  "  World  Politics,"  pp.  60, 
113,  184. 
2  Wheat.  D.,  §  193,  p.  274. 


JURISDICTION  115 

navigation  is,  in  many  instances,  one  of  particular  pro- 
vision. 

The  rivers  fall  under  three  classes: — 

1.  Rivers  which  traverse  only  one  state. 

2.  Rivers  which  traverse  two  or  more  states. 

3.  Rivers  upon  the  opposite  banks  of  which  different 

states  have  jurisdiction. 

(a)  Rivers  which  traverse  only  one  state  are  exclusively 

Rivers  which     within    the    jurisdiction    of    that    state.     This 

traverse  only     jurisdiction  may  extend  even  to  the  forbidding 

one  state.  ^^  ^j^^  ^g^  ^^  ^  ^.-^gj.  ^^  other  states,  and  justifies 

the  state  in  prescribing  such  regulations  for  its  use  as  it  may 
deem  fit. 

(6)  Rivers  flowing  through  two  or  more  states  are  for 
those  parts  within  the  boundaries  of  each  state  under  its 
Rivers  which  jurisdiction  for  the  purposes  of  police,  tolls,  and 
traverse  two  general  regulations.  The  right  of  absolute  ex- 
or  more  states.  pi^gJQj^  of  i\^q  co-riparian  states  by  any  one  of 

the  states  through  which  a  river  flows  has  been  the  subject 
of  much  discussion,  and  authorities  of  great  weight  can  be 
found  upholding  either  side. 

(c)  When  two  states  have  jurisdiction  upon  opposite  banks 

of  a  river,  the  jurisdiction  of  each  state  extends  to  the  middle 

of  the   main  channel  or  thalweg.    Before  the 

^^tn^  Treaty  of  Luneville   (Art.  VI)_,   1801,  it    had 

under  juris-       been  common  to  consider  the  limit  of  jurisdic- 

diction  of  two      ^.^^  ^f  ^j^g  ^^^  g^^^^g  ^^^  j^.^^g  ^f  ^^^  ^^ 
different  states.  _  ' 

a  line  much  more  difficult  to  determine,  and 
more  changeable  than  the  channel  line.  The  thalweg  has  been 
frequently  confirmed  as  the  accepted  boundary  where  no  con- 
ventions to  the  contrary  existed.  ^ 

*  Ed.  Engelhardt,  "  Du  regime  conventionnel  des  fleuves  intemationaux," 
Ch.  II.;  Scott,  129;  1  Moore,  §  128. 


116  INTERNATIONAL  LAW 

52.     The  Navigation  of  Rivers 

The  laws  of  jurisdiction  of  rivers  are  generally  accepted. 
The  early  idea  that  there  was  a  natural  right  of  navigation, 
and  innocent  passage  received  less  support  during  the  nine- 
teenth century  than  formerly.  The  history  of  river  navi- 
gation during  the  nineteenth  century,  as  shoAvn  in  the 
discussions  between  the  representatives  of  various  nations, 
and  in  the  treaties  and  conventions  agreed  upon,  as  well  as  in 
treaties  and  declarations  voluntarily  made  in  regard  to  navi- 
gation of  rivers,  seems  to  furnish  general  rules : 

(a)  1.  That  international  law  gives  to  other  states  no 
right  of  navigation  of  rivers  wholly  within  the  jurisdiction  of 

General  rules       another  state. 

for  river  2.  That  wheu  a  river  forms  the  boundary  of 

navigation.        ^^^  ^^  more  states  it  is  open  to  the  navigation 
of  each  of  the  states. 

3.  That  when  a  river  passes  through  two  or  more  states, 
international  law  gives  no  right  to  one  of  the  states  to  pass 
through  the  part  of  the  river  in  the  other  state  or  states. 
There  is  a  strong  moral  obligation  resting  upon  the  states 
below  to  allow  freedom  of  navigation  through  the  river  to 
the  states  upon  the  upper  course  of  the  river.  The  right  of 
innocent  use,  innocent  passage,  freedom  of  river  navigation,  has 
been  maintained  on  various  grounds  and  in  various  forms, 
by  many  authorities,  i  Those  who  take  a  position  opposed 
to  this  claim  assert  that  the  navigation  of  rivers  is,  and  prop- 
erly should  be,  to  avoid  more  serious  complications,  a  matter 
of  convention. 

(b)  In  fact,  since  the  French  Revolution,  the  subject  has  so 
frequently  boon  a  matter  of  convention  ^  as  to  establish  the 

1  Grotius,  II,  ii,  12-14;  Pufendorf,  III.  3,  4;  Vattel,  §§  104,  126-130, 
132-134;  Bluntschli,  ^  314;  Calvo,  §§  259,  290-291;  Fiore,  §§  758,  768; 
Carnazza-Amari,  "Traite,"  §  2,Ch.  VII,  17;  Heffter,  §  77;  Wheat.  D.,  §  193. 

2  Wheat.  D.,  §§  197-204;  1  Moore,  §  129;  Pradier-Fodere,  "Traite," 
§§  727-755. 


JURISDICTION  117 

general  principles,  that  in  case  of  no  special  restrictions,  river 
navigation  is  free,  subject  to  such  regulations  as  the  state 
having  jurisdiction  may  deem  necessary,  and 
of  rules  by  that  the  privilege  of  navigation  carries  with  it 
conventions.  ^^^  ^gg  q£  ^Y\e  river  banks,  so  far  as  is  neces- 
sary for  purpose  of  navigation. i 

53.     Jurisdiction  of  Enclosed  Waters 

(a)  The  rule  in  regard  to  waters  wholly  within  the  terri- 
tory of  a  state  such  as  lakes,  etc.,  is  that  the  jurisdiction  is 
Jurisdiction  on  exclusively  in  that  state.  The  decisions  of  the 
waters  wholly  United  States  Supreme  Court  have  sometimes 
enclosed.  regarded  the  Great  Lakes  as  "  high  seas,"  though 

treaties,  opinions,  and  practice  have  generally  been  such  as 
would  find  sanction  only  in  exclusive  jurisdiction. 2 

(6)  Gulfs,  bays,  and  estuaries  are  regarded  as  within  the 
jurisdiction  of  the  state  or  states  enclosing  them,  provided 
,    .  ,.  ,.  the  mouth  is  not  more  than  six  miles  in  width. 

Jurisdiction 

over  gulfs,  bays,  A  line  drawn  from  headland  to  headland  on 
and  estuaries,     g^j^j^gj.  gj^jg  Qf  ^^g  mouth  Is  Considered  as  the 

coast  line  of  the  state,  and  for  purposes  of  maritime  jurisdic- 
tion the  marine  league  is  measured  from  this  line.  Waters 
having  wider  openings  into  the  sea  have  been  claimed  on 
special  grounds,  as  the  claim  of  the  United  States  to  terri- 
torial jurisdiction  over  the  Chesapeake  and  Delaw^are  bays. 
France  and  Germany  claim  jurisdiction  over  gulfs  having 
outlets  not  over  ten  miles  in  width.  Between  states  parties 
to  treaties  special  claims  have  been  made  and  allowed.  These 
treaty  stipulations  do  not  necessarily  bind  states  not  parties 
to  the  treaty,  e.g.  treaty  between  Great  Britain  and  France, 
1839.  "It  is  agreed  that  the  distance  of  three  miles,  fixed 
as  the  general  limit  of  the  exclusive  right  of  fishing  upon  the 

»  Justinian,  "Institutes,"  2,  t.  1,  §§  1-5. 
2  United  States  v.  Rodgers,  150  U.  S.  249. 


118  INTERNATIONAL  LAW 

coasts  of  the  two  countries,  shall,  with  respect  to  bays,  the 
mouths  of  which  do  not  exceed  ten  miles  in  width,  be  meas- 
ured from  a  straight  line  drawn  from  headland  to  headland."  ^ 

More  recent  tendency  is  toward  the  acceptance  of  the 
ten-mile  limit  of  width  of  mouth,  though  there  is  a  reasonable 
claim  that  some  ratio  should  be  fixed  for  very  large  interior 
water  areas  to  which  the  entrance,  though  more  than  ten 
miles,  is  yet  relatively  narrow. 

(c)  Straits  less  than  six  miles  in  width  are  within  the  juris- 
diction of  the  shore  state  or  states.  In  case  two  shores  are 
territory  of  different  states,  each  state  has  juris- 
«!!ll^ol!o';^^        diction  to  the  middle  of  the  navigable  channel. 

over  straits.  ^ 

Where  a  state  owns  both  shores  of  a  strait 
which  does  not  exceed  six  miles  in  width,  the  strait  is  within 
its  territorial  jurisdiction,  though  other  states  have  the  right 
of  navigation.  This  right  of  navigation  is  in  general  conferred 
upon  both  merchant  and  war  vessels  of  states  at  peace  with  the 
territorial  power.  These  vessels  must,  however,  comply  with 
proper  regulations  in  regard  to  navigation.  The  claim  to  exclu- 
sive jurisdiction  over  such  narrow  straits  has  been  abandoned. 
The  claim  of  the  king  of  Denmark  to  jurisdiction  over 
the  Danish  Sound  and  the  Two  Belts,  which  entitled  him 
Jurisdiction  ^^  ^^^^  ^^^^^  upon  vessels  passing  through,  was 
over  the  based  on  prescription  and  fortified  by  treaties 

anis  soun  s.  ^^  early  as  the  one  with  the  Hanse  towns  in 
1368.  Against  these  tolls,  as  an  unjust  burden  upon  com- 
merce, the  United  States  protested  in  1848,  at  the  same  time 
maintaining  that  Denmark  had  not  the  right  of  exclusive 
jurisdiction.  The  European  states  in  1857  paid  a  lump  sum 
in  capitalization  of  the  sound  dues.  The  United  States, 
refusing  to  recognize  the  right  of  Denmark  to  levy  tolls, 
paid  $393,011  in  1857  in  consideration  of  Denmark's  agree- 
ment to  keep  up  lighthouses,  etc. 

'  1  Moore,  §  153. 


JURISDICTION  119 

The  navigation  of  the  Bosphorus  and  Dardanelles  has 
been  a  subject  of  discussion  and  treaty  since  1774,  when 
The  Bosphorus  R^^sia  compelled  Turkey  to  open  these  straits 
and  Darda-  to  the  passage  of  merchant  vessels.  War  ves- 
"®  ®^"  sels  were  excluded  till  1856  when,  by  convention 

attached  to  the  Treaty  of  Paris,  such  vessels  were  admitted 
for  special  purposes  of  service  to  the  embassies  at  Constanti- 
nople and  protection  of  improvements  on  the  Danube  water- 
way. By  the  Treaty  of  1871  the  Sultan  may  admit  other 
war  vessels,  if  necessary  for  carrying  out  terms  of  the  Treaty 
of  Paris.  The  United  States  has  never  acknowledged  that  the 
Sultan  had  the  right  to  exclude  its  war  vessels,  though  always 
asking  permission  of  the  Sultan  to  pass  the  Dardanelles. 

As  a  generally  accepted  principle  the  law  may  be  stated 
as  follows:  straits  connecting  free  seas  are  open  to  the  navi- 
gation of  all  states,  subject  of  course  to  reasonable  jurisdic- 
tion of  the  territorial  power. 

(d)  Canals  connecting  large  bodies  of  water  have  been 

regarded  as  in  most  respects  subject  to  jurisdiction  similar 

to   that   of  straits.    Yet   as   these   canals  are 

Juris  iction       constructed  at  a  cost,  they  must  also  be  given 

over  canals.  _  .  .     .  , 

exemptions    from    certain    restrictions    which 
properly  apply  to  natural  channels. 

The  position  of  the  Suez  Canal  as  an  international  water- 
way gives  some  indication  of  existing  practice. 

It  is    to    be    noted,   (1)  that    the    canal    is   an  artificial 

waterway;  (2)  that  M.  de  Lesseps,  a  foreigner,  in  1854,  under 

authorization  of  the  Viceroy,  undertook  its  con- 

Canai"^^  struction  as  a  business  venture;  (3)  that  it  is 

wholly  within  the  territory  of  Egypt. 

The  case  is  then  one  of  an  artificial  waterway,  constructed 

by  private  capital,  wholly  within  the  territory  of  a  state. 

The  negotiations  continued  from  1869,  when  the  canal 
was  opened,  to  1888,  when  a  convention  was  signed  by  the 


120  INTERNATIONAL  LAW 

Six  Great  Powers,  and  by  the  Netherlands,  Spain,  and  Tur- 
key, by  which  the  status  of  the  canal  was  defined.  By 
Article  I  of  the  Conventional  Act,  "  The  Suez  Maritime  Canal 
shall  always  be  free  and  open,  in  the  time  of  war  as  in  the 
time  of  peace,  to  every  vessel  of  commerce  or  of  war,  without 
distinction  of  flag. 

"Consequently,  the  High  Contracting  Parties  agree  not  in 
any  way  to  interfere  with  the  free  use  of  the  Canal,  in  time 
of  war  as  in  time  of  peace. 

"The  Canal  shall  never  be  subjected  to  the  exercise  of 
the  right  of  blockade." 

By  Article  IV,  the  canal  is  not  to  become  the  base  of  hostile 
action.  The  marine  league  is  to  be  respected  in  the  action 
of  foreign  vessels.  The  twenty-four  hour  period  is  to  elapse 
between  the  sailing  of  hostile  vessels. 

By  Article  VII,  the  powers  may  keep  two  war  vessels  in 
the  "ports  of  access  of  Port  Said  and  Suez,"  though  "this 
right  shall  not  be  exercised  by  belligerents." 

By  Article  X,  the  territorial  jurisdiction  for  general  ad- 
ministrative purposes  is  affirmed,  and  likewise  for  sanitary 
measures  in  Article  XV. ^ 

This  Suez  Canal  of  such  great  international  importance  is 
by  this  convention  within  the  jurisdiction  of  Egypt,  but  the 
powers  have  assumed  to  provide  that  this  jurisdiction  shall 
not  be  exercised  in  such  a  way  as  to  prevent  innocent  passage. 

The  Hay-Pauncefote  Treaty   of   1901,   setting  aside ""  the 

Clayton-Bulwer  Treaty  of  1850,  leaves  to  the  United  States 

large  jurisdiction  over  such  canal  as  it  may 

The  Panama      determine  to  construct  across  the  Central  Amer- 

Canal. 

ican  Isthmus,  and  it  is  also  provided  that  the 
canal  shall  be  neutralized  substantially  as  in  the  manner  set 
forth  in  the  Convention  in  regard  to  the  Suez  Canal. 

'Pari.  Papers,  1889,  Commercial,  No.  2;  Holland,  "Studies  in  Inter- 
national Law,"  p.  270. 


JURISDICTION  121 

The  canal  at  Corinth,  shortening  somewhat  the  route  to 

the  Black  Sea  and  Asia  Minor,  was  opened  in  1893.     This 

canal  does  not,  like  the  Suez,  greatly  change 

K^ercaiTa^s        ^^^^  Current  of  the  world's  intercourse,  and  is 

entirely  within  the  jurisdiction  of  Greece. 

Similarly  the  canal  at  Kiel,  opened  in  1896,  is  wholly  within 

the  jurisdiction  of  Germany. 

54.     The  Three-mile  Limit 

(a)  One  of  the  most  generally  recognized  rules  of  interna- 
tional law  is  that  the  jurisdiction  of  a  state  extends  upon  the 
statement  and  op^u  sea  to  a  distance  of  three  miles  from  the 
origin  of  the  low-water  mark.  In  the  words  of  the  Act  of 
princip  e.  Parliament  passed  in  consequence  of  the  case  of 

the  Franconia,^  1878  (41  and  42  Victoria,  c.  73),  "The  terri- 
torial waters  of  Her  Majesty's  dominions,  in  reference  to  the 
sea,  means  such  part  of  the  sea  adjacent  to  the  coast  of  the 
United  Kingdom,  or  the  coast  of  some  other  part  of  Her 
Majesty's  dominions,  as  is  deemed  by  international  law  to 
be  within  the  territorial  sovereignty  of  Her  Majesty;  and  for 
the  purpose  of  any  offence  declared  by  this  Act  to  be  within 
the  jurisdiction  of  the  Admiral,  any  part  of  the  open  sea 
within  one  marine  league  of  the  coast  measured  from  low- 
water  mark  shall  be  deemed  to  be  open  sea  within  the  terri- 
torial waters  of  Her  Majesty's  dominions."  The  three-mile 
limit  became  more  and  more  generally  recognized  after  the 
publication  of  Bynkershoek's  "De  Dominio  Maris,"  in  which 
he  enunciates  the  principle  that  the  territorial  jurisdiction 
ends  where  the  effective  force  of  arms  ends,  which  being 
approximately  three  miles  from  shore  at  that  time,  has  since 
been  usually  accepted. 

(6)  For  special  purposes  a  wider  limit  of  jurisdiction  is 
maintained  and  sometimes  accepted  by  courtesy,  though  it 

'  See  Regina  v.  Keyn,  2  L.  R.  (Exch.  Div.),  63;  Scott,  154. 


122  INTERNATIONAL  LAW 

is  doubtful  whether  any  state  would  attempt  to  hold  its  po- 
sition against  a  protest  from  another  state.     The  claims  are 
based  on  the  jurisdiction  over  fisheries,  the  en- 
A  wi  er  imit     forcement  of  revenue  laws,  and  the  maintenance 

sometimes  ' 

claimed  for        of  neutrality.    Such  claims  as  the  former  English 
special  claims  to  the  "King's  Chambers,"  announced  in 

purposes. 

1604  to  be  bounded  by  a  "straight  line  drawn 
from  one  point  to  another  about  the  realm  of  England,"  as 
from  the  Lizard  to  Land's  End,  would  not  now  receive  serious 
support;  and  since  the  rejection  of  the  claims  of  the  United 
States  by  the  Bering  Sea  Tribunal,  it  can  be  safely  stated 
that  the  expansion  of  territorial  jurisdiction  upon  the  open 
sea  will  only  come  through  the  consensus  of  states.  The 
desirability  of  some  new  regulations  upon  marine  jurisdiction 
was  well  shown  in  the  discussions  of  the  Institute  of  Inter- 
national Law  at  its  meeting  in  Paris  in  1894. ^ 

Within  the  three-mile  limit  the  jurisdiction  extends  to 
commercial  regulations,  rules  for  pilotage  and  anchorage, 
sanitary  and  quarantine  regulations,  control  of  fisheries, 
revenue,  general  police,  and  in  time  of  war  to  the  enforcement 
of  neutrality. 

55.     Jurisdiction  over  Fisheries 

The  existence  of  fisheries  has  given  rise  to  some  special 
claims  to  extension  of  maritime  jurisdiction. 

(a)  As  a  general  rule,  the  right  of  fishing  on  the  high  sea 

belongs  to  all  states  alike,  but  each  must  respect  the  rights 

of  others.     In  order  that  these  rights  might  be 

Fishing  on  the      ,    „  .  .  i 

high  sea  a  right  defined,  it  has  in  many  cases  been  necessary 
belonging  to  iq  resort  to  conventions.  One  of  the  excel- 
lent examples  of  this  kind  is  seen  in  the  con- 
vention in  regard  to  the  North  Sea  Fisheries,  May  6,  1882,  to 
which  Belgium,  Denmark,  France,  Germany,  Great  Britain, 

» Annuaire  XIII,  329. 


JURISDICTION  123 

and  Holland  are  parties.  The  cruisers  of  any  of  these  states 
may  present  the  case  of  the  fishing  vessel  violating  the  regu- 
lations of  the  convention  in  the  country  to  which  the  vessel 
belongs,  but  the  trial  and  penalty  belong  to  the  country  of 
the  vessel.  1 

(6)  Special  privileges  granted  by  one  state  to  another, 

or  secured  by  custom,  become  servitudes,  as  in 

ii!,l!!^r,^ficl';"^n.  the  case   of   the  Canadian  fisheries,  and  must 

leges  in  nsning,  ' 

as  in  the  case     depend  upon  the  interpretation  of  the  treaties 

of  the  Canadian  ,       ^j^-^j^  ^^       ^^^^  granted. 

XlSI16ri6S  •/  cj 

By  the  Treaty  of  1783  the  United  States  has 
the  right  of  fishing  on  certain  parts  of  the  coast  of  the  Brit- 
ish Dominion  in  North  America. 

Great  Britain  claimed  that  these  rights  were  annulled  by 
the  Treaty  of  Ghent,  1814,  which  put  an  end  to  the  War  of 
1812  as  that  treaty  was  silent  upon  the  subject.  The  United 
States  declared,  "  they  were  not  annulled  by  the  war  as  they 
were  enjoyed  by  the  colonists  before  the  separation  from 
England  in  1783,  and  so  existed  perpetually  independent  of 
treaty." 

This  claim  was  adjusted  by  the  Treaty  of  1818,  which  gave 
to  the  United  States  permission  to  take  fish  on  certain  parts 
of  the  coast  of  Newfoundland  and  Labrador,  to  dry  and  cure 
fish  in  certain  inlets,  and  to  enter  other  inlets  for  shelter, 
repairs,  and  supplies. 

Disputes  arising  under  this  treaty  were  settled  by  the 
Treaty  of  1854,  which  gave  to  Canadian  fishermen  certain 
rights  of  fishing  along  the  eastern  coast  of  the  United  States 
north  of  the  thirty-sixth  parallel  of  latitude. 

The  United  States  took  action  to  terminate  this  treaty  in 
accord  with  its  terms  in  1866.  The  conditions  of  the  Treaty 
of  1818  revived. 

The  Treaty  of  Washington,  1871,  practically  reestablishes 

^  Lawrence,  pp.  138,  182. 


124  INTERNATIONAL  LAW 

the  provisions  of  the  Treaty  of  1854,  specifying  that  the 
difference  in  value  between  the  rights  granted  by  each  state 
to  the  other  should  be  determined  by  a  commission.  This 
commission  awarded  $5,500,000  to  Great  Britain  in  1877. ^ 

In  accord  with  the  provisions  of  the  Treaty  of  1871,  it  was 
terminated  by  the  United  States  in  1886,  the  provisions  of 
the  Treaty  of  1818  again  coming  in  force. 

A  law  of  March  3,  1897,^  provides  that  the  President  may 
in  certain  contingencies  deny  vessels  of  the  British  Dominions 
of  North  America  entry  into  the  waters  of  the  United  States, 
and  may  also  prohibit  the  importation  of  fish  and  other 
goods.  3 

These  fisheries  continued  to  be  the  subject  of  international 
negotiations,  and  modi  vivendi  were  from  time  to  time  agreed 
upon  between  the  United  States  and  Great  Britain,  till  at 
length  under  the  provisions  of  the  Arbitration  Treaty  of  April 
4,  1908,  between  the  two  states,  the  dispute  was  referred  to 
the  Hague  tribunal  for  adjudication  in  accordance  with  a 
special  agreement  of  January  27,  1909.'* 

(c)  Another  question  which  has  given  rise  to  much  dis- 
cussion is  that  of  the  seal-fishing  in  Bering  Sea. 

In  1821  Russia  claimed  that  the  Pacific  north 

The  disputed  c  i      •       i  7  mi       xt    •       i 

question  of  of  latitude  51°  was  mare  clausum.  The  United 
seal-fishing  in  gtates  and  Great  Britain  denied  this  claim.  By 
conventions,  1824  and  1825,  Russia  conceded  to 
these  nations  rights  of  navigation,  fishing,  etc.  After  "the 
United  States  in  1867  acquired  Russian  America,  seal-fishing 
assumed  importance.  As  the  Canadian  fishermen  were  not 
restrained  by  the  laws  binding  the  United  States  fishermen, 
it  was  feared  that  the  seal  would  become  extinct.  In  1886 
three  Canadian  schooners  were  by  decree  of  the  district  court 
of  Sitka  confiscated  for  the  violation  of  the  laws  of  the  United 

»  See  Cushing's  "  Treaty  of  Washington."      ^  24  U.  S.  Sts.  at  Large,  475. 
« 1  Moore,  767-874.  •  3  A.  J.  I.  L.  Doc,  168. 


JURISDICTION  125 

States  in  regard  to  seal-fishing,  the  judge  charging  the  jury 
that  the  territorial  waters  of  Alaska  embraced  the  area 
bounded  by  the  limits  named  in  the  treaty  of  cession  to  the 
United  States  of  1867  as  those  "within  which  the  territories 
and  dominion  conveyed  are  contained."  ^  This  act  with 
others  of  similar  character  led  to  a  formal  protest  by  Great 
Britain. 

The  questions  in  dispute  were  referred  to  a  court  of  arbi- 
tration which  decided  against  the  claims  of  the  United  States, 
denying  that  the  sea  referred  to  as  the  Bering  Sea  was  mare 
clausum,  and  denying  that  the  United  States  acquired  juris- 
diction by  prescriptive  right  from  Russia  in  1867.  It  was 
also  decided  that  the  United  States  had  no  right  of  property 
in  the  seals  in  the  open  sea,  and  that  the  destruction  of  these 
animals  was  contrary  to  the  laws  of  nature.  The  United 
States  and  Great  Britain,  however,  entered  into  an  agreement 
in  regard  to  the  protection  and  taking  of  the  seals  by  their 
subjects.  Other  nations  were  also  to  be  asked  to  become 
parties  to  the  agreement.  ^ 

It  may  be  regarded  as  finally  established  that  fishing  in 
the  open  sea  is  free  to  all,  though  of  course  states  may  by 
conventions  establish  regulations  which  shall  be  binding 
upon  their  subjects. 

56.     Jurisdiction  over  Vessels 

At  the  present  time  every  vessel  must  be  under  the  juris- 
diction of  some  state. 

(a)  Vessels  are  divided  into  two  general  classes. 

(1)  Public  vessels,  which  include  ships  of 
"  *f  ^°      ,    war,  government  vessels  engaged  in  public 

private  vessels.  \  ^  .  . 

service,  and  vessels  employed  in  the  service 
of  the  state  and  in  command  of  government  officers. 

1  Treaties  of  U.  S.,  940. 

2  Proceedings  Fur  Seal  Arbitration,  1893;  also  27  U.  S.  Sts.  at  Large,  947. 


126  INTERNATIONAL  LAW 

(2)  Private  vessels,  owned  by  individuals  and  under 
regulations  varying  in  different  states. 
(6)  The  nationality  of  a  public  vessel  is  determined  by  its 
flag.     In  an  extreme  case  the  word  of  the  commander  is 
held  to  be  sufficient  proof. 

Nationality  of  a  .      /  i  j^i       n        - 

vessel  deter-  An  case  01  a  private  vessel  the  nag  is  a  corn- 

mined  by  its      j^Qn  evidence,  but  in  case  of  doubt  the  vessel 
flag  or  papers.  .       i  ^  4.x.     -4.'         -x 

must   show   to   proper    authorities    its   papers 
which  certify  its  nationality. 

(c)  The  general  exercise  of   jurisdiction  over  vessels  pre- 
sents four  different  aspects  as  follows: 

(1)  Upon  the  high  seas  and  within  its 

General  .      .,.. 

exercise  oivu  Waters  the  jurisdiction  of  a  state  over 

of  jurisdiction     j^g  public  and  private  vessels  is  exclusive 

over  vessels.        „         „ 

tor  all  cases. 
(2)  Over  public  vessels  in  foreign  ivaters,  the  jurisdic- 
tion of  the  state  to  which  a  public  vessel  belongs  is 
exclusive  for  all  matters  of  internal  economy.  The  ves- 
sels are  subject  to  port  regulations  in  matters  of  anchor- 
age, public  safety,  etc.  As  Dana  says  in  his  note  to 
Wheaton:  "It  may  be  considered  as  established  law,  now, 
that  the  public  vessels  of  a  foreign  state  coming  within 
the  jurisdiction  of  a  friendly  state,  are  exempt  from  all 
forms  of  process  in  private  suits."  i  In  general  practice 
the  waters  of  all  states  are  open  to  the  vessels  of  war 
of  all  other  states  with  which  they  are  at  peace.  This 
is  a  matter  of  courtesy  and  not  of  right,  and  is  in  fact 
sometimes  denied,  as  by  the  provision  of  the  Treaty  of 
Berlin,  1878:  "The  port  of  Antivari  and  all  the  waters 
of  Montenegro  shall  remain  closed  to  the  ships  of  war 
of  all  nations."  ^  Various  regulations  may  require,  with- 
out offense,  notice  of  arrival,  probable  duration  of  stay, 
rank  of  commander,  etc. 

>  Note  63,  §  105.  » IV  Hertslet,  2783, 


JURISDICTION  127 

The  boats,  rafts,  etc.,  attached  to  a  vessel  of  war  are  re- 
garded as  a  part  of  the  ship  while  engaged  in  the  public  service. 

While  there  is  some  difference  of  opinion  as  to  the  immu- 
nities of  the  persons  belonging  to  a  ship  of  war  in  a  foreign 
harbor,  a  generally  admitted  rule  seems  to  be 
immmiities  ^^^^  while  the  persons  of  a  ship  of  war  are  en- 
gaged in  any  public  service  that  is  not  prohib- 
ited by  the  local  authorities,  such  persons  are  exempt  from 
local  jurisdiction.  The  ship's  crew  would  not  be  arrested 
and  detained  by  local  authorities  for  minor  breaches  of  local 
regulations,  though  they  might  be  sent  on  board  their  vessel 
with  statement  of  reasons  for  such  action.  If  the  action  of 
the  crew  constitutes  a  violation  of  the  law  of  the  country 
to  which  they  belong,  the  commander  of  the  ship  may  punish 
them,  and  report  his  action  to  the  local  authorities.  In  case 
of  crimes  of  serious  nature  the  commander  may  turn  the 
offenders  over  to  the  local  authorities,  but  must  assure  them 
a  fair  trial. 

The  commander  of  a  vessel  is,  of  course,  always  responsible 
to  his  home  government,  and  his  action  may  become  the 
subject  of  diplomatic  negotiations. 

The  question  of  right  of  asylum  on  board  a  ship  of  war 
has  been  much  discussed.  First,  most  civilized  states  now 
The  right  of  afford  asylum  on  board  their  ships  of  war  to 
asylum  on  board  those  who,  in  the  less  civilized  regions,  flee  from 
a  ship  of  war.  gjavery.i  Second,  in  cases  of  revolution  ships 
of  war  sometimes  afford  refuge  to  members  of  the  defeated 
party,  though  the  ship  of  war  may  not  be  used  as  a  safe 
point  from  which  further  hostilities  may  be  undertaken. 
Third,  a  commander  may  afford  asylum  to  political  refugees 
under  circumstances  which  he  thinks  advisable.  Fourth,  in 
cases  where  asylum  is  granted  to  offenders  whether  political, 
or  (in  case  of  treaty  right)  criminal,  if  the  request  of  the  local 

*  Art.  28,  Gen.  Act  Brussels  Conference,  July  2,  1890, 


128  INTERNATIONAL  LAW 

authorities  for  the  release  of  the  criminal  is  refused  by  the 
commander  of  the  ship,  there  is  no  recourse  except  to  the 
diplomatic  channels  through  extradition. 

The  immunities  granted  to  vessels  of  war  are  also  gen- 
erally conceded  to  other  vessels  strictly  upon  public  service, 
Immunities  ^'S-  Carrying  an  ambassador  to  his  post.  The 
of  vessels  in  largest  possible  exemption  is  given  to  a  vessel 
pu  ic  service.  (.Q^veying  the  sovereign  of  a  state.  Vessels 
transporting  military  forces  in  command  of  regularly  com- 
missioned government  officers  are  usually  granted  immunities 
accorded  to  men-of-war. 

(3)  Over  private  vessels  in  foreign  waters  the  amount 
YsiTying  ^^  jurisdiction  claimed  by  different  states 

jurisdiction  Varies. 

vesse?"^^*^  '^^^  principle  which  is  meeting  with  growing 

in  foreign  favor,    as   shown   by   practice   and   by   treaty 

waters.  stipulation,  was  stated  by  Chief  Justice  Waite  in 

1886  as  follows :  "  Disorders  which  disturb  only  the  peace  of 
the  ship,  or  those  on  board,  are  to  be  dealt  with  exclusively 
by  the  sovereignty  of  the  home  of  the  ship;  but  those  which 
disturb  the  public  peace  may  be  suppressed,  and,  if  need 
be,  the  offenders  punished  by  the  proper  authorities  of  the 
local  jurisdiction."  ^ 

The  position  of  France  is,  briefly,  to  assume  no  jurisdic- 
tion over  foreign  merchantmen  within  her  ports  save  in  cases 
where  the  act  affects  some  person  other  than  those  belonging 
to  the  ship,  where  the  local  authorities  are  expressly  called 
upon  to  interfere,  or,  when  the  order  of  the  port  is  disturbed. ^ 

The  British  Territorial  Waters  Jurisdiction  Act  of  August 
28,  1878,  gives  jurisdiction  to  the  authorities  over  all  acts 
committed  within  the  marine  league,  even  though  the  ships 
are   not   anchored    but   merely  passing   through    territorial 

'  Wildenhus's  Case,  120  U.  S.  1,  18;  Scott,  225. 

'  Bonfils,  "De  la  competence  des  tcibunaux  franQais,"  §  326.. 


JURISDICTION  129 

waters.^    This  is  an  extreme  position,  and  not  supported  by 
the  best  authorities,  even  in  Great  Britain. 

The  position  of  France,  as  stated  above,  is  open  to  little 
objection  either  in  practice  or  theory,  and  is  more  and  more 
becoming  a  form  of  treaty  agreement,  and  may  be  consid- 
ered generally  approved.  Where  these  principles  are  adopted 
the  jurisdiction  of  breaches  of  order  within  the  ship  may  be 
referred  to  the  consul  who  has  jurisdiction,  and  if  necessary 
he  may  call  upon  the  local  officers  to  assist  him  in  enforcing 
his  authority. 

(4)  In  recent  years  special  exemption  from  jurisdic- 
tion has  been  accorded  to  certain  semi-public  vessels 
engaged  particularly  in  the  postal  and 
emption  of  Scientific  service.  Vessels  in  the  postal 
semi-public  service  have  by  treaties  been  accorded 
special  freedom  from  customs  and  port 
regulations;  and  by  the  Convention  between  Great 
Britain  and  France,  August  30,  1890  (Art.  9),  it  is  agreed 
that  in  time  of  war  such  vessels  shall  be  free  from  moles- 
tation till  one  of  the  states  shall  give  formal  notice  that 
communication  is  at  an  end. 

57.     Aerial  Jurisdiction 

With  the  development  of  wireless  telegraphy  and  with  the 
use  of  the  atmosphere  as  a  highway  for  airships,  balloons, 
etc.,  there  have  arisen  questions  in  regard  to  aerial  jurisdic- 
tion. It  is  generally  recognized  that  the  state  possessing 
territorial,  maritime  and  fluvial  jurisdiction  has  jurisdiction  in 
the  atmosphere  above.  Already  states  have  begim  to  regulate 
the  use  of  the  wireless  telegraph  by  the  Convention  of  Berlin  of 
November  3,  1906.  In  a  preliminary  statement,  the  Institute 
of  International  Law  in  1906,  declared  that  ''The  air  is  free. 
States  have  over  it,  in  time  of  peace  and  in  time  of  war,  only 

» Statutes,  41  and  42,  Vict.,  p.  579. 


130  INTERNATIONAL  LAW 

the  rights  necessary  for  preservation."  Each  state  must 
judge  for  itself  what  the  extent  of  these  rights  may  be  as  is 
the  case  within  fairly  definite  limits  with  reference  to  mari- 
time jurisdiction;  e.g.  photographing  of  fortifications  might 
be  prohibited  from  ships  upon  the  water  or  from  ships  in  the 
air.  The  extent  to  which  a  state  may  exercise  its  jurisdiction 
will  be  determined  in  large  measure  by  the  limits  of  its  effec- 
tive control  of  the  atmosphere. 

58.     Jurisdiction  over  Persons — Nationality 

Under  the  discussion  of  jurisdiction  of  the  state  over 
persons  comes  the  question  of  nationality.  Nationality 
involves  the  reciprocal  relations  of  allegiance  and  protection 
on  the  part  of  the  person  and  state.  It  corresponds  to  citi- 
zenship in  the  broad  sense  of  that  term.  In  general  a  state 
may  exercise  jurisdiction  over  its  own  subjects  or  citizens 
as  it  will,  and  the  relations  of  a  state  to  its  citizens  are  matters 
of  municipal  law  only. 

Persons  who  owe  allegiance  to  a  state  and  are  entitled  to 
its  protection  are  in  some  recent  treaties  called  nationals  of 
that  state. 

A  state  exercises  jurisdiction  over  all  persons  within  its 
limits  except  certain  officers  of  other  states  by  exterritoriality 
entitled  to  exemption  from  local  jurisdiction.  In  some  of 
the  Eastern  states  citizens  of  Western  states  are  by  treaty 
exempt  from  certain  local  laws.  This  last  exemption  may 
properly  be  said  to  be  by  local  law,  as  a  treaty  be- 
comes a  part  of  the  state  law  for  the  subjects  upon  which  it 
touches. 

The  jurisdiction  also  varies  with  the  status  of  the  person 
as  regards  his  relations  to  other  states.  The  conflict  of  laws 
in  regard  to  nationality  forms  an  important  part  of  'private 
international  law. 


JURISDICTION  131 

59.     Jurisdiction  over  Natural-born  Subjects 

Children  born  within  a  state  of  which  the  parents  are 
citizens  are  natural-born  subjects  of  that  state.  Such  per- 
sons are  fully  under  the  local  jurisdiction. 

Foundlings,  because  of  the  uncertainty  of  parentage,  are 
considered  subjects  of  the  state  in  which  they  are  found. 

Illegitimate  children  take  the  nationality  of  the  mother, 
provided  they  are  born  in  the  state  of  which  the  mother  is 

subject. 

The  great  bulk  of  the  population  of  all  states,  except  those 
most  recently  founded,  is  natural-born,  and  therefore  fully 
under  local  jurisdiction. 

60.     Jurisdiction  over  Foreign-bom  Subjects 

It  is  the  general  principle  that  each  state  determines  citi- 
zenship by  its  own  laws.  The  status  of  persons  born  abroad 
may  become  very  uncertain  by  virtue  of  the  conflict  of  laws 
of  the  state  of  which  one  or  both  the  parents  are  citizens 
and  the  state  in  which  the  child  is  born. 

These  laws  in  regard  to  children  born  to  parents  while 
sojourning  in  foreign  countries  may  be  classified  as  follows: — 

(a)  The  child  born  in  the  foreign  country  is  a  subject  of 

the  state  of  which  his  parents  are  citizens.     That  the  child 

inherits  the  nationality  of  his  father  is  a  com- 

Theruieof        ^^^^    maxim    known    as    jus   sanguinis.     The 

]us  sanguinis.  "" 

United  States  law  says:  "All  children  hereto- 
fore born  or  hereafter  born  out  of  the  limits  and  jurisdiction 
of  the  United  States,  whose  fathers  were  or  may  be  at  the  time 
of  their  birth  citizens  thereof,  are  declared  to  be  citizens  of 
the  United  States;  but  the  rights  of  citizenship  shall  not 
descend  to  children  whose  fathers  never  resided  in  the  United 
States."  1    The  jus  sanguinis  is  followed  by  Austria, ^  Ger- 

» TT.  S.  Rev.  Sts.,  §  1993;  1  Gould  and  Tucker,  478;  2  ibid.,  178,  203. 
2  Civil  Code,  Art.  28. 


132  INTERNATIONAL  LAW 

many/  Hungary,2  Sweden,^  Switzerland/  and  by  some  of 
the  smaller  European  states. 

(6)  Certain  states  follow  the  rule  of  jus  soli,  maintaining 
that  the  place  of  birth  determines  the  nationality.     Great 

Britain,  by  Article  4  of  the  Act  of  May  12,  1870, 
jus  soli.  adopts    this    principle.     By    the    Fourteenth 

Amendment  of  the  Constitution  of  the  United 
States,  "All  persons  born  or  naturalized  in  the  United  States 
and  subject  to  the  jurisdiction  thereof,  are  citizens  of  the 
United  States  and  of  the  state  wherein  they  reside."  The 
laws  of  the  United  States  have  given  rise  to  many  questions.^ 
Portugal  and  most  of  the  South  American  states  follow  the 
jus  soli. 

(c)  Other  states  follow  sometimes  the  jus  sanguinis,  some- 
times jus  soli,  and  sometimes  modifications  of  these  laws. 

The  laws  of  Belgium  and  Spain  regard  the  child 
inTaws!"^         of  an  alien  as  an  alien,  though  on  attaining 

majority  the  child  may  choose  the  citizenship 
of  the  country  of  his  birth.  The  French  laws  of  June 
26-28,  1889,  and  July  22,  1893,  consider  as  subjects  the 
children  born  abroad  to  French  citizens,  also  the  children 
of  foreigners  born  in  France,  unless  these  children  within  one 
year  after  attaining  majority  elect  the  nationality  of  their 
parents.  Most  states  allow  the  descendants  born  to  foreign- 
ers sojourning  within  their  limits  to  elect  their  allegiance  on 
attaining  majority.  Switzerland,  however,  strongly  main- 
tains the  jus  sanguinis,  without  according  any  choice  to  the 
descendants  born  to  foreigners  within  her  limits,  or  to  her 
own  subjects  born  abroad  except  by  formal  renunciation  of 
citizenship.  Thus  the  child  of  a  citizen  of  Switzerland  born 
in  France  would  be  by  French  law  a  citizen  of  France,  and  by 
Swiss  law  a  citizen  of  Switzerland. 

1  Law  of  June  1,  1870.  '  Dec.  24,  1879.  3  Feb.  27,  1858. 

*  July  3,  1876.  «  3  Moore,  §  425. 


JURISDICTION  133 

By  the  law  of  Germany,  a  citizen  of  Germany  sojourning 
more  than  ten  years  abroad  without  registration  at  his  con- 
sulate loses  his  German  citizenship,  without  necessarily 
acquiring  the  citizenship  of  the  country  of  his  sojourn,  thereby 
becoming  heimatlos,  or  a  "man  without  a  country." 

At  the  present  time  the  laws  in  regard  to  descendants 
born  to  parents  sojourning  in  a  foreign  state  show  the  widest 
diversity  and  give  rise  to  unfortunate  complications.^ 

61.     Jurisdiction  by  Virtue  of  Acquired  Nationality 

The  jurisdiction  of  a  state  extends  to  those  who  volun- 
tarily acquire  its  citizenship. 2 

(a)  A  woman  in  most  states  by  marriage  acquires  the 

nationality  of  her  husband.     In  some  of  the  South  American 

states  the  husband  acquires  the  citizenship  of  his 

By  marriage.       ^^^^      -j^^  ^j^^  j^^  ^^  Belgium,  AugUSt  6,  1881, 

and  by  the  law  of  France,  June  26,  1889,  it  was  made  easier 
for  foreigners  who  had  married  women  natives  of  those  states 
to  acquire  Belgian  or  French  nationality  respectively.  The 
United  States  law  holds  that  a  woman  marrying  a  citizen  of 
the  United  States  acquires  his  nationality.  An  American 
woman  on  marrying  a  foreigner  takes  his  nationality,  but  on 
termination  of  marital  relations,  she  may  regain  American 
nationality  by  registering  within  one  year  before  a  United 
States  consul  or  by  residence  within  the  United  States.^ 

(6)  A  state  may  acquire  jurisdiction  over  persons  by  nat- 
uralization, which  is  an  act  of  sovereignty  by  which  a  for- 
eigner is  admitted  to  citizenship  in  another  state.  The 
method  of  naturalization  is  in  accord  with  local  law  and  varies 
greatly  in  different  states.*     The  law  of  the  United  States 

»3  Pradier-Fod^r4,  1648-1653;  Van  Dyne,  "Citizenship  of  the  United 
States." 

^  Van  Dyne,  "  Law  of  Naturalization  of  the  United  States." 

334  Sts.  at  Large,  590;  1  Gould  and  Tucker,  479;  2  ibid.,  178. 

*  3  Pradier-Fod6r6,  1656  ff.;  U.  S.  Sts.  1905-6,  Ft.  I,  596,  Act  June  29, 
1906;   1  A.  J.  I.  L.  Doc,  p.  31. 


134  INTERNATIONAL  LAW 

prescribes  that  Congress  has  power  "  to  establish  an  uniform 
rule  of  naturalization."  ^     The  foreigner  desiring  naturaliza- 
tion in  the  United  States  must  declare  on  oath 
By  natural!-       before  a  court  ''  two  years,  at  least,  prior  to  his 

zation.  _  J  J  J  I 

admission,  and  after  he  has  reached  the  age  of 
eighteen  years,"  his  intent  to  become  a  citizen.  After  five 
years  of  residence  and  within  seven  years  of  the  first  declara- 
tion, he  may  obtain  citizenship  by  taking  an  oath  of  alle- 
giance to  the  United  States  and  of  renunciation  of  his  former 
country.2 

(c)  A  state  may  acquire  jurisdiction  over  persons  by 
annexation  of  the  territory  upon  which  they  reside.     The 

territory  may  be  acquired  by  cession,  exchange, 
o/territOTT*°°    purchase,  conquest,  etc.    The  conditions  of  the 

transfer  of  allegiance  from  the  state  formerly 
possessing  the  territory  is  usually  fixed  by  the  treaty.  This 
transfer  is  known  as  collective  naturalization. 

Ordinarily  a  right  to  choose  the  allegiance  to  either  state 
is  left  to  the  inhabitants  of  an  annexed  territory.  Removal 
from  the  new  jurisdiction  is  usually  required  if  the  inhabitant 
does  not  choose  to  change  his  allegiance.  If  the  inhabitant 
does  not  take  any  action,  it  is  held  that  he  thereby  tacitly 
transfers  his  allegiance  unless  there  are  special  treaty  pro- 
visions.^ 

{d)  The  effect  of  naturalization,  whatever  the  method, 
is  to  make  the  person  a  citizen  of  the  state  into  which  he 

is  admitted,  and  over  him  that  state  has  juris- 
naturaUzation     ^i^tion  in  all  placcs  outside  the  jurisdiction  of 

the  state  whose  allegiance  he  has  forsworn. 
There  may  be  conflict  in  the  laws  determining  the  relations 
to  his  native  state  of  a  person  who  has  renounced  his  alle- 
giance to  one  state  by  naturalization  in  another  state.     The 

'  Constitution  of  U.  S.,  Art.  I,  §  8. 

^  34  Sts.  at  Large,  590;  1  Gould  and  Tucker,  513;  2  ibid.,  202. 

3  2  Pradier-Fod^r^,  863;  3  ibid.,  1671  ff. 


JURISDICTION  135 

general  law  is,  that  he  becomes  entitled  to  all  the  privileges 
of  a  subject  of  the  state  of  his  new  allegiance,  except  that 
when  he  is  within  his  first  state  he  becomes  liable  for  the 
performance  of  any  obligation  which  he  may  have  incurred 
prior  to  his  naturalization.  ^ 

A  state  may  determine  what  conditions  must  be  fulfilled 
in  order  to  constitute  a  valid  severance  of  allegiance.  Laws 
are  diverse  upon  this  subject.  Many  states  have  maintained, 
and  some  still  maintain,  that  allegiance  is  inalienable.^  Eng- 
land formally  maintained  this  principle  till  1870,  and  her 
attempts  to  enforce  the  principle  brought  on  the  War  of  1812 
with  the  United  States. 

In  certain  countries,  as  in  the  United  States  and  Switzer- 
land, minor  children  are  held  to  follow  the  allegiance  of  their 
father  in  case  of  naturalization.  The  French  law  claims 
that  the  minor  child's  nationality  is  that  of  his  birthplace. 
The  subject  has  been  determined  in  some  instances  by  treaty 
stipulation,  yet  must  be  considered,  like  many  questions  of 
naturalization,  as  unsettled. 

Many  states  distinguish  in  law  and  more  in  practice  between 
that  naturalization  which  carries  with  it  protection  of  the 
state  and  allegiance  of  the  subject  {naturalisation  ordinaire) 
and  that  naturalization  which  carries  full  political  privileges 
(grande  naturalisation). 

(e)  The  fact  that  a  person  has  taken  the  preliminary  steps 
toward  acquiring  the  nationality  of  a  foreign  state,  by  mak- 
ing a  declaration  of  his  intention  or  otherwise, 
ncompete        ^         -^  ^j^^  State  to  which  the  person  has 

naturalization,  ^     o  i^ 

assumed  an  inchoate  allegiance  the  right  of  pro- 
tection of  the  declarant  against  third  states,  ^  though  not 
necessarily  against  the  native  state  of  the  declarant."*  Of  the 
privileges  to  be  accorded  to  one  who  has  declared  his  intention 

'  Treaties  of  U.  S.,  1262;  3  Moore,  §  401.  *  Hall,  p.  231. 

'  3  Moore,  §  387.  '3  Moore,  §  491. 


136  INTERNATIONAL  LAW 

to  become  a  citizen  of  the  United  States,  Secretary  Marcy 
said,  ''The  declaration,  indeed,  is  prima  facie  evidence  that 
the  person  who  made  it  was,  at  its  date,  domiciled  in  the 
United  States,  and  entitled  thereby,  though  not  to  all,  to 
certain  rights  of  a  citizen,  and  to  much  more  consideration 
when  abroad  than  is  due  to  one  who  has  never  been  in  our 
country;  but  the  declarant,  not  being  a  citizen  under  our 
laws,  even  while  domiciled  here,  cannot  enjoy  all  the  rights 
of  citizenship  either  here  or  abroad";  ^  and  Mr.  Marcy  also 
says  of  the  papers  proving  domicile,  "And  to  this  simple 
certificate  .  .  .  the  European  authorities  are  at  liberty  to 
pay  such  respect  as  they  think  proper."  2 

In  1853  a  case  arose  in  which  the  United  States  affirmed: 
"It  is  a  maxim  of  international  law  that  domicile  confers 
national  character;  .  .  .  international  law  looks 
Koszta  "  "^  ^^^^y  ^^  ^^^  national  character  in  determining 
what  country  has  the  right  to  protect.  If  a 
person  goes  from  this  country  abroad,  with  the  nationality 
of  the  United  States,  this  law  enjoins  upon  other  nations  to 
respect  him,  in  regard  to  protection,  as  an  American  citizen."  ^ 
This  statement  was  made  in  support  of  the  position  assumed 
by  the  United  States  in  the  case  of  one  Martin  Koszta. 
Koszta,  a  Hungarian  refugee  of  1848-1849,  went  to  Turkey, 
was  imprisoned,  later  was  released  on  condition  of  leaving 
the  country,  went  to  the  United  States,  declared  his  intention 
to  become  a  citizen,  and  in  1853  returned  to  Turkey.  "He 
went  into  business  at  Smyrna,  obtained  there  a  traveling  pass 
certifying  that  he  was  under  protection  of  the  United  States, 
was  seized,  thrown  into  the  sea  by  persons  employed  by  the 
Austrian  consulate,  and  was  picked  up  by  an  Austrian  man- 
of-war.  Hussar.     The  consul  of  the  United  States  remon- 

»  3  Moore,  §  502,  Marcy  to  Seibels,  May  27,  1854. 
2  3  Moore,  §  502,  Marcy  to  Fay,  May  27,  1854. 

=  2  Moore,  §§  197,  200,  287;  3  Moore,  §  490;  5  Moore,  §  870,  Marcy  to 
Hiiselmann,  Sept.  26,  1853. 


JURISDICTION  137 

strated,  but  the  captain  of  the  Hussar  held  Koszta.  The 
charg6  d'affaires  requested  the  aid  of  a  United  States  man- 
of-war,  whose  captain  demanded  Koszta's  release.  To  avoid 
conflict  in  the  port  the  mediation  of  the  French  consul  was 
accepted,  and  Koszta  was  intrusted,  pending  settlement  of 
claims,  to  the  French  consul.  Finally  Koszta  was  allowed 
to  return  to  the  United  States,  though  Austria  maintained 
her  right  to  proceed  against  him  if  he  returned  to  Turkey. 
The  United  States  in  this  case  undoubtedly  took  an  extreme 
position  in  its  claim  of  jurisdiction. 

By  an  act  of  March  3,  1863,  the  United  States  declared 

that  those  who  had  taken  the  preliminary  oath  of  intention 

,  to  become  citizens  were  liable  to  military  ser- 

Citizenship  and      .  ,        »       .  . 

Uabiiity  to  vice.  Upon  protest  by  foreign  nations  against 
military  ^^js  ^^^  gf  Congress,  the  President,  by  proclama- 

tion, announced  that,  as  it  had  been  claimed 
that  "such  persons,  under  treaties  or  the  law  of  nations, 
retain  a  right  to  renounce  that  purpose,  and  to  forego  the 
privileges  of  citizenship  and  residence  within  the  United 
States,  under  the  obligations  imposed  by  the  aforesaid  act  of 
Congress,"  ^  to  avoid  all  misapprehension,  the  plea  of  alienage 
would  be  accepted  for  sixty-five  days,  during  which  time  such 
persons  as  had  only  declared  their  intention  to  become  citi- 
zens might  depart. 

The  position  in  the  Koszta  case,  where  the  claim  to  the 
protection  of  the  United  States  was  made  when  the  inchoate 
citizen  was  in  trouble,  and  the  claim  of  the  inchoate  citizens 
to  renounce  their  allegiance  when  the  state  was  in  difficulties, 
show  some  of  the  problems  to  which  the  diverse  laws  and 
practices  in  regard  to  naturalization  have  given  rise. 

The  municipal  laws  of  some  of  the  local  states  of  the 
United  States  admit  to  all  political  privileges  of  the  local 
state  those  who  have  taken  the  first  steps  toward  naturaliza- 

'  6  Messages  and  Papers  of  Presidents,  168. 


138  INTERNATIONAL  LAW 

tion.  It  is  generally  conceded  that  such  as  have  exercised 
the  privileges  of  full  citizens  can  properly  be  held  to  the  obli- 
Mxinicipai  laws  g^tions  of  full  citizens,  as  was  declared  in  the 
and  naturaii-      above  proclamation. 

zation.  rpj^g  inconsistencies  in  regard  to  jurisdiction 

over  those  naturalized  or  incompletely  naturalized  are  grad- 
ually yielding  to  treaty  provisions  which  distinctly  determine 
the  position  of  such  persons. 


62.     Jurisdiction  over  Aliens 

Citizens  of  one  state,  when  sojourning  in  a  foreign  state, 
have  a  dual  relationship  by  which  they  may  claim  certain 
privileges,  both  from  their  native  state  and  from  the  foreign 
state. 

(a)  The  native  state  naturally  has  jurisdiction  of  a  qualified 
sort  over  its  subjects  even  when  they  are  in  a  foreign  state. 

(1)  The  right  to  make  emiqration  laws 

Qualified  juris-  ,       ,     ^^  ^  .   ^.  ,  •     ,. 

diction  over       inay    lead    to    restrictions    binding    in    a 
subjects  foreign    state.     A    state    may   banish    its 

subjects.     No  other  state  is  obliged  to  re- 
ceive them,  however. 

(2)  A  state  may  recall  its  citizens  for  special  reasons, 
as  in  the  case  of  Greece  in  1897,  when  Greek  citizens  were 
recalled  for  military  service. 

(3)  There  is  much  difference  of  opinion  upon  the  ques- 
tion of  penal  jurisdiction  of  the  native  state  over  its  sub- 
jects who  have  committed  crimes  in  a  foreign  state.  In 
general  American  and  English  authorities  agree  that 
penal  law  is  territorial.  Some  of  the  continental  authori- 
ties take  the  view  that  a  citizen  on  his  return  may  be 
punished  for  crimes  committed  in  a  foreign  state.  The 
English  law  takes  this  position  in  certain  crimes,   as 


JURISDICTION  139 

treason,  bigamy,  and  premeditated  murder.  Usually  a 
crime  committed  upon  a  vessel  in  a  foreign  harbor  is 
held  as  within  the  jurisdiction  of  the  state  of  the  vessel's 
registry. 

(4)  A  state  may  interfere  to  protect  its  subjects  in  a 
foreign  state,  thus  extending  its  authority  in  their  behalf. 
This  has  been  frequently  done  to  protect  Western  so- 
journers in  Eastern  states,  e.g.  the  demands  of  Germany, 
in  1898,  for  concessions  from  China  on  account  of 
injuries  to  missionaries.  These  demands,  accompanied 
by  a  naval  demonstration,  resulted  in  the  cession  of 
Kiauchau. 

(6)  The  jm'isdiction  of  a  state  over  aliens  within  its  terri- 
tory is  very  extensive. 

(1)  The  absolute  right  of  exclusion  of  all 

Jurisdiction  / 

over  aliens  foreigners  w^ould  hardly  be  maintained  by 
within  any  civilized  state,  though  it  could  be  de- 

duced from  the  doctrine  of  sovereignty. 
Whether  justly  or  not,  Japan  and  China  have  been  com- 
pelled by  force  to  cede  certain  rights  to  states  demanding 
admission  for  their  citizens. 

(2)  The  right  of  expulsion  is,  however,  generally  main- 
tained. This  right  should,  however,  be  exercised  most 
carefully,  as  the  fact  of  admission  carries  with  it  some 
obligation  on  the  part  of  the  admitting  state. 

(3)  The  right  to  conditional  admission  is  generally 
allowed,  as  seen  in  laws  in  regard  to  immigration, 

(4)  The  foreign  state  may  impose  such  restrictions  upon 
settlement  as  it  sees  fit. 

(5)  A  foreign  state  may  levy  such  taxes  upon  the 
person  and  goods  of  aliens  as  are  in  accord  with  state 
law. 


140  INTERNATIONAL  LAW 

(6)  Aliens  are  subject  to  the  local  sanitary  and  'police 
jurisdiction. 

(7)  The  foreign  state  has  fcnal  jurisdiction  over  aliens 
for  crimes  committed  within  territorial  limits,  and  many- 
states  maintain,  also,  for  such  crimes  as  plotting  against 
the  state,  counterfeiting  state  money,  or  crimes  directly 
imperiling  the  state's  well-being  even  when  committed 
outside  of  state  limits. 

(8)  The  state  may  require  aliens  to  render  service  such 
as  is  necessary  to  maintain  public  order,  even  military- 
service,  to  ward  off  immediate  and  sudden  danger,  e.g. 
as  an  attack  by  savages,  a  mob,  etc.,  but 

(9)  A  state  cannot  compel  aliens  to  enter  its  military 
service  for  the  securing  of  political  ends,  or  for  the  general 
ends  of  war. 

(10)  In  nearly  all  states  freedom  of  commerce  is  now 
conceded,  the  state  giving  to  native  and  foreigner  similar 
privileges.  China  still  restricts  trade  to  certain  free 
ports. 

(11)  The  holding  and  bequeathing  of  property  of  what- 
ever sort  is  subject  to  local  law. 

(12)  Freedom  of  speech  and  of  worship  are  also  subject 
to  local  law. 

All  these  laws  are  subject  to  the  exemptions  in  favor  of 
sovereigns,  diplomatic  agents,  etc. 
Passport  ^s  Ordinarily  the  identity  of  an  alien  is 

fli  1x16 cvUS  lor  ^  - 

establishing      established  by  a  passport.     This  may  also 
the  identity       ggcure  for  him  a  measure  of  care  in  a  for- 

of  an  alien.  ^  .      .     ,  i      /•  c  x 

eign  state.    Opposite  is  the  form  ot  passport. 


JURISDICTION 


141 


Good  only  for  two  years  from  date. 

UNITED  STATES   OF  AMERICA 

Depaktment  of  State 

To  all  to  whom  these  presents  shall  come,  Greeting  : 

I,  the  undersigned,  Secretary  of  State  of  the  United  States  of  America, 

hereby  request  all  whom  it  may 
DESCRIPTION  concern  to  permit 

Age Years 

Stature. . .  .Feet,.  .Inches. .,  Eng. 

Forehead 

Eyes 

Nose 

Mouth 

Chin 

Hair 

Complexion 

Face 


(seal) 
(Signature  of  the  Bearer) 


a   Citizen    of   the   United   States, 

safely 

and  freely  to  pass,  and  in  case  of 

need  to  give all  lawful  Aid 

and  Protection. 

Given  under  my  hand  and  the 
Seal  of  the  Department  of  State, 
at   the   City    of    Washington,    the 

day  of in  the  year 

19. .,  and  of  the  Independence  of 
the  United  States  the  one  hun- 
dred and 


No. 


63.    Exemptions  from  Jurisdiction — General 

As  a  general  principle,  the  sovereignty  of  a  state  within  its 
boundaries  is  complete  and  exclusive.  For  various  reasons 
there  has  grown  up  the  custom  of  granting  immunity  from 
local  jurisdiction  to  certain  persons  generally  representing 
the  public  authority  of  a  friendly  state.  This  immunity  may 
extend  to  those  persons  and  things  under  their  control. 

This  immunity  has  been  called  exterritoriality.  The  per- 
sons and  things  thus  exempt  from  local  jurisdiction  are 
regarded  as  carrying  with  them  the  territorial  status  of  their 
native  state,  or  as  being  for  purposes  of  jurisdiction  within 


142  INTERNATIONAL  LAW 

their  own  state  territory,  and  beyond  that  of  the  state  in 

which  they  are  geographically.   Wherever  they  may  go  they 

carry  with  them  the  territory  and  jurisdiction 

Exterritoriality.  ^^  ^^^^.^  ^^^^  ^^^^^^     Doubtless  this  doctrine  of 

exterritoriality  in  the  extreme  form  may  be  carried  too  far, 
as  many  late  writers  contend,  and  some  have  desired  another 
term,  as  immunity  from  jurisdiction,  as  more  exact  and  cor- 
rect. ^  Such  a  term  would  have  the  merit  of  directing  atten- 
tion to  the  nature  of  the  relation  which  the  persons  concerned 
sustained  to  the  state.  Hall  sums  up  the  case  by  saying, 
''If  exterritoriality  is  taken,  not  merely  as  a  rough  way  of 
describing  the  effect  of  certain  immunities,  but  as  a  principle 
of  law,  it  becomes,  or  at  any  rate  is  ready  to  become,  an 
independent  source  of  legal  rule,  displacing  the  principle  of 
the  exclusiveness  of  territorial  sovereignty  within  the  range 
of  its  possible  operation  in  all  cases  in  which  practice  is  un- 
settled or  contested."  2  Exterritoriality  should  be  viewed  as 
based  on  the  immunities  conceded  to  public  persons,  rather 
than  as  the  source  of  these  immunities. 

64.     Exemption  of  Sovereigns 

Sovereigns  sojourning  in  their  official  capacity  in  foreign 
countries  are  exempt  from  local  jurisdiction.  This  principle 
is  based,  not  merely  upon  courtesy,  but  also  upon  convenience 
and  necessity.  The  sovereign  represents  the  state,  and  there- 
fore cannot  be  subjected  to  the  jurisdiction  of  another  state 
without  waiving  the  sovereignty,  and  in  so  far  depriving  the 
state  of  one  of  its  essential  qualities.  Nor  can  the  visiting 
sovereign  exercise  any  authority  which  would  infringe  the 
sovereign  powers  of  the  state  in  which  he  is.  The  visit- 
ing sovereign  can  only  claim  immunity  for  such  action  as  is  in 
accord  with  the  necessities  of  his  convenient  sojourn.     He, 

'  Bonfils,  No.  337.  '  Hall,  p.  167. 


JURISDICTION  143 

his  retinue,  and  effects,  are  exempt  from  civil  and  criminal 
jurisdiction.  He  is  free  from  taxes,  duties,  police  and  ad- 
ministrative regulations.  In  the  case  of  Vavasseur  v.  Krupp, 
1878,  it  was  decided  that  infringement  of  the  patent  law 
did  not  constitute  a  ground  for  suit  against  a  sovereign.  In 
this  case  Vavasseur  brought  action  against  Krupp,  for  infringe- 
ment of  patent  on  shells  in  custody  of  the  agents  of  the 
Mikado  of  Japan.  The  action  resulted  in  an  injunction  pre- 
venting removal  of  the  shells  to  the  Mikado's  ships,  but  on 
application  of  the  Mikado  to  remove  the  shells  as  his  prop- 
erty, the  court  held  that,  even  if  the  property  in  question 
infringed  a  patent,  the  Mikado  could  not  be  sued  and  his 
property  could  not  be  held.  ^  The  principle  that  the  sovereign 
is  free  from  suit  has  frequently  been  decided  by  the  courts  of 
various  countries.  A  sovereign  sojourning  in  a  foreign  state 
cannot,  however,  set  up  his  courts  and  execute  judgment; 
such  functions  belong  to  his  territorial  courts.  Criminals  in 
his  retinue  must  be  sent  home  for  trial.  While  the  sover- 
eign's hotel  or  place  of  residence  while  abroad  is  exempt  from 
local  jurisdiction,  the  sovereign  is  not  justified  in  allowing 
the  hotel  to  become  an  asylum  for  others  than  members  of  his 
retinue.  On  demand  he  must  give  up  such  refugees.  In 
case  the  sovereign  does  not  observe  this  principle  or  commits 
acts  liable  to  endanger  the  peace  of  the  foreign  state,  the 
authorities  may  invite  him  to  depart,  or  if  necessary  expel 
him  by  force. 

The  sovereign  may,  in  his  private  capacity,  hold  property 
and  become  party  to  a  suit  like  any  citizen. 2  A  sovereign 
may  travel  incognito,  and  is  then  entitled  only  to  the  recog- 
nition accorded  to  the  rank  which  he  assumes.  He  can,  how- 
ever, assert  his  sovereign  capacity  and  obtain  its  immunities 
at  any  time  should  he  deem  it  proper. 

'  Scott,  "Cases,"  182  ff.,  for  this  and  other  cases. 

2  Rothschild  v.  Queen  of  Portugal,  Scott,  "Cases,"  178;  Bynkershoek, 
"  De  Foro  Legatorum, "  Ch.  XVI . 


144  INTERNATIONAL  LAW 

65-    Exemptions  of  State  Officers 

(a)  Diplomatic  agents,  or  those  commissioned  to  transact 
the  poHtical  affairs  of  the  state  abroad,  are  conceded  a  wide 
Wide  immunity  immunity  from  local  jurisdiction.  As  repre- 
aiiowed  dipio-  senting  the  political  will  of  their  state,  diplo- 
matic agents,  jj^^tic  agents  have  immunities  similar  to  those 
conceded  to  the  sovereign,  though  by  virtue  of  the  fact  that 
the  sending  of  diplomatic  agents  has  long  been  a  common 
practice,  their  immunities  are  quite  well  defined.  These 
immunities  will  be  considered  more  in  detail  under  the  sub- 
ject of  International  Intercourse,  but  in  general  a  diplomatic 
agent  is  exempt  from  (1)  criminal  jurisdiction,  (2)  civil  juris- 
diction, (3)  local  police  and  administrative  regulations,  (4) 
taxes  and  duties,  (5)  jury  and  witness  duty,  (6)  regulations 
in  regard  to  religious  and  social  action,  (7)  all  exercise  of 
authority  by  the  local  state  within  his  official  residence  or 
hotel,  (8)  and  is  exempt  from  the  exercise  of  similar  authority 
over  his  household,  official  and  unofficial. ^ 

(6)  The  exemptions  granted  to  consuls  vary  in  different 
Exemptions  states  and  under  different  circumstances.  In 
granted  to  general  consuls  are  entitled  to  such  exemptions 
consuls.  ^g  ^jjj   gnable   them   to   perform   their  func- 

tions effectively. 2 

(c)  Any  foreign  army  within  the  territorial  limits  of  a 
given  state,  by  permission  of  the  sovereign  of  said  "^tate, 
is  free  from  the  sovereign's  jurisdiction.  Chief 
tJtZtf^^Zte  Justice  Marshall,  in  1812,  gave  as  his  opinion: 
by  permission,  "  In  such  case,  without  any  express  declaration 
free  from  waiving  iurisdiction  over  the  army   to   which 

jiu-isdiction.  °   •'  1111 

this  right  of  passage  has  been  granted,  the 
sovereign  who  should  attempt  to  exercise  it  would  certainly 
be  considered  as  violating    his   faith.  .  .  .  The  grant  of  a 

'  See  Sec.  80  (b)  for  full  discussion.     ^  See  Sec.  82  (/)  for  full  discussion. 


JURISDICTION  145 

free  passage,  therefore,  implies  a  waiver  of  all  jurisdiction 
over  the  troops  during  their  passage,  and  permits  the  foreign 
general  to  use  that  discipline,  and  to  inflict  those  punish- 
ments, which  the  government  of  his  army  may  require."  ^ 
Permission,  either  general  or  special,  must  be  obtained  in 
order  that  an  army  may  enter  a  foreign  state  in  time  of 
peace.  The  army  must  cause  the  least  possible  incon- 
venience to  the  state  during  its  sojourn. 

The  military  attache  of  an  embassy  is  regarded  as  a  mem- 
ber of  the  official  household  of  the  diplomatic  agent. 

(d)  As  a  vessel  of  war  can  without  inconvenience  to  a 

foreign  state  pass  through  or  remain  within  its  maritime 

jurisdiction,  it  is  customary  to  accord  to  the 

A  vessel  of  war  i         j  •  -.      e  i        i    •      •    v 

in  a  foreign  vessel  and  crew  immunity  from  local  jurisdic- 
state  free  from  tion  and  freedom  of  passage  unless  withheld 
\°'^^^,.  ^.  for  special  reason.     "Their  immunity  from  local 

jurisdiction.  .... 

jurisdiction  has  come  to  be  more  absolute  than 
that  of  the  official  residence  of  ambassadors,  and  probably 
for  the  reason  that  they  have  the  efficient  means  of  resistance 
which  an  ambassador  has  not."  2 

In  general  the  exemption  from  local  jurisdiction  which 
a  vessel  of  war  enjoys  in  a  foreign  state  extends:  (1)  to  acts 
beginning  and  ending  on  board  the  vessel ;  ^  (2)  to  all  boats, 
etc.,  of  the  vessel  of  war  in  charge  of  the  crew  of  the  vessel 
and  upon  its  service;  (3)  to  freedom  from  customs  and  all 
such  regulations  as  are  not  necessary  for  the  safety  of  the 
port.  It  was  held  in  case  of  the  United  States  frigate  Consti- 
tution, in  1879,  that  she  was  not  liable  to  salvage  charges. ^ 
A  vessel  of  war  is  liable  to  quarantine,  anchorage,  and  to 
other  rules  which  imply  no  derogation  of  sovereignty;  (4)  to 
all  persons  on  board  the  vessel  whether  members  of  the  crew 
or  others.    This  exemption  should  not  be  taken  as  warrant- 

1  Exchange  v.  M'Faddon,  7  Cr.,  116,  139;  Scott,  208. 
*  "International  Law,"  Naval  War  Col.,  2d  ed.,  p.  23. 
»  HaU,  p.  195.  *  Scott,  "Cases,"  p.  218. 


146  INTERiNATIONAL  LAW 

ing  a  general  exercise  of  the  right  of  asylum  on  board  vessels 
of  war.  Asylum  may  be  granted  as  an  act  of  hospitality  to  a 
political  refugee,  who  should  not  use  the  vessel  as  a  base  for 
political  intrigue.  Asylum  to  common  criminals  cannot  be 
granted  without  offense  to  the  foreign  state.  Such  crim- 
inals are  usually  surrendered  on  request  of  the  local  author- 
ities. 

A  commander  may  not  pursue  deserters  on  shore  or  exercise 
external  authority. 

Hall  sums  up  the  general  principle  as  follows,  "The  im- 
munities of  a  vessel  of  war  belong  to  her  as  a  complete  instru- 
ment, made  up  of  vessel  and  crew,  and  intended  to  be  used 
by  the  state  for  specific  purposes;  the  elements  of  which  she 
is  composed  are  not  capable  of  separate  use  for  those  purposes ; 
they  consequently  are  not  exempted  from  the  local  jurisdic- 
tion." 1 

In  case  of  abuse  of  exemptions  the  state  in  whose  waters 
the  foreign  ship  of  war  is,  can  request  it  to  depart;  and  if  its 
request  is  not  complied  with,  can  use  force,  though  the  cus- 
tomary method  is  to  resort  to  diplomatic  channels. 

66.     Special  Exemptions 

(a)  In  certain  Oriental  states,  the  subjects  of  Western 
states  are  by  treaty  exempt  from  local  jurisdiction.  The 
extent  of  the  exemption  in  each  case  depends 
orientaTstates  ^pou  the  treaty  provisions.  The  basis  of  this 
special  exemp-  exemption  is  found  in  the  "  incompatibility  of 
tions  regulated  j^^|^j^.g  ^^  thought  on  all  legal  and  moral  ques- 

by  treaty  '^  .  .,.,.. 

tions,"  2  and  the  consequent  impossibility  of 
obtaining  what  to  the  Western  states  seems  just  treatment 
on  the  part  of  Oriental  officials.  Consular  courts  were 
established  to  meet  the  needs  of  foreigners  within  the  juris- 

»  Hall,  p.  198.  ^  2  Moore,  §  262. 


JURISDICTION  147 

diction  of  these  Eastern  states. i  The  consuls  in  these  states 
were  invested  with  special  judicial  powers,  though  not  con- 
sidered by  the  laws  of  the  United  States  judicial  officers. 
Each  state  determines  the  competence  of  its  consular  courts 
in  foreign  states. 

The  following  rules  are  general,  though  not  absolute, 
propositions  in  regard  to  the  treatment  of  cases  involving 
natives  of  Eastern  countries  and  foreigners. 

(1)  Penal  Matters.  If  a  native  commits  a  crime 
against  a  foreigner,  he  is  generally  tried  in  the  local 
court. 

If  a  foreigner  commits  a  crime  against  a  native,  he  is 
generally  tried  in  the  consular  court  of  his  state. 

If  a  foreigner  commits  a  crime  against  a  foreigner  of 
another  nationality,  he  is  generally  tried  in  the  consular 
court  of  the  injured  foreigner. 

If  both  parties  to  the  crime  are  of  the  same  nationality, 
the  offenders  are  tried  in  the  court  of  their  ovm  state. 

If  the  crime  is  a  grave  one,  such  as  murder,  sentence 
cannot  be  passed  without  the  sanction  of  the  home 
government,  and  in  some  cases  the  offender  is  sent  home 
for  trial. 

(2)  Civil  Matters.  In  cases  invohing  a  foreigner  and 
a  native,  the  trial  is  generally  by  agents  of  the  two 
countries. 

In  cases  involving  subjects  of  the  same  state,  their 
consular  court  has  jurisdiction. 

In  cases  involving  foreigners  of  different  nationalities 
the  consular  court  of  the  defendant  has  jurisdiction. 

In  cases  involving  large  interests,  there  is  an  appeal 
from  the  consular  to  the  higher  courts  of  the  state. 

'  By  treaties  with  Japan,  going  into  effect  1899,  such  courts  were  abol- 
ished in  that  empire.  29  U.  S.  Sts.  at  Large,  848.  By  an  Act  of  Con- 
gress of  June  30,  1906,  the  United  States  estabhshed  "the  United  States 
Court  for  China,"  which  takes  over  for  the  more  important  cases  the  juris- 
diction formerly  exercised  by  consuls  and  ministers. 


148  INTERNATIONAL  LAW 

In  the  East  registration  of  the  head  of  the  family  at 
the  consulate  is  necessary  to  obtain  consular  protection. 
Local  statutes  provide  for  the  execution  of  treaty  stipu- 
lations as  to  consular  jurisdiction. ^ 
(6)  In  Egypt  mixed  courts  were  instituted  in  1875.     This 
system,  arranged  by  convention,  has  received  the  assent  of 
nearly  all  the  European  states  and  of  the  United 

Mixed  courts       o^   j.       o 

!„  -p^^,,*  btates.2 

in  Egypt. 

The  majority  of  the  judges  in  these  courts 
are  foreigners,  and  the  courts  have  competence  over  cases 
against  the  Egyptian  government,  over  civil  and  commercial 
matters  between  foreigners  and  natives,  and  between  for- 
eigners of  different  nationalities.  The  consuls  have  jurisdic- 
tion in  other  matters.  These  courts  have  been  the  subject 
of  much  discussion  and  great  difference  of  opinion. 

67.     Extradition 

Extradition  is  the  act  by  which  one  state  delivers  a  person 
accused  of  crime  committed  beyond  its  borders  to  another 
state  for  trial  and  punishment. 

Many  of  the  Continental  states  maintain  that  extradition 
is  a  duty  binding  upon  all  civilized  states,  on  the  ground 
that  the  prevention  of  crime  which  would  result  from  cer- 
tainty of  punishment  is  an  object  to  be  sought  by  all  for  the 
general  good.  Grotius,  Vattel,  Kent,  Fiore,  and  many  other 
authorities  maintain  this  position.  Bluntschli,  Foelix,  Klii- 
ber,  G.  F.  de  Martens,  Pufendorf,  Phillimore,  Wheaton  and 
the  majority  of  authorities  make  the  basis  of  extradition  the 
conventional  agreement  of  treaties. ^  The  large  number  of 
extradition  treaties  of  the  last  half  of  the  nineteenth  century 

'  1  U.  S.  Rev.  Sts.,  §§  4083-4130;  1  Gould  and  Tucker,  770-772;  2  ibid., 
503. 

2  Proclamation  of  March  27,  1876;  19  U.  S.  Sts.  at  Large,  662. 

'"The  surrender  of  fugitives  from  justice  is  a  matter  of  conventional 
arrangement  between  states,  as  no  such  obligation  is  imposed  by  the  law 
of  nations."     In  the  Matter  of  Metzger,  5  How.  173. 


JURISDICTION  149 

has  made  the  practice  general.  Occasionally  a  state  has, 
in  the  absence  of  treaties,  voluntarily  surrendered  fugitives 
from  justice  as  an  act  of  courtesy.  The  extradition  of  Tweed 
by  Spain  in  1876  was  an  act  of  this  kind.i  Such  cases  are  not 
common,  however, ^  and  it  is  safe  to  derive  the  principles  from 
the  general  practice  as  seen  in  treaties. 

(a)  Persons  liable  to  extradition  vary  according  to  treaties. 

It  is  the  general  practice  to  surrender  on  demand  of  the  state 

in  which  the  crime  is  committed  only  those 

Persons  liable    ^^^  ^^^  subjects  of  the  State  making  the  de- 

to  extradition.  *■  ^  '^  ^ 

mand.  This  is  the  general  rule  of  the  Conti- 
nental states.  As  Great  Britain  and  the  United  States 
maintain  the  principle  of  territorial  penal  jurisdiction,  it  is 
customary  for  these  states  to  uphold  the  idea  of  extradition 
even  of  their  own  subjects.^  The  practice  is  not  uniform  in 
the  relations  of  these  states  to  other  states,  as  is  shown  in 
their  treaties.  The  South  American  and  Continental  Euro- 
pean states  hold  that  their  own  citizens  are  not  liable  to  extra- 
dition. 

A  large  number  of  the  modern  writers  are  in  favor  of  the 
extradition  of  subjects  in  the  same  manner  as  aliens,  and  it 
is  evident  that  the  drift  of  international  practice,  as  shown 
by  the  treaties  of  the  last  quarter-century,  is  toward  the 
refusal  to  grant  protection  to  a  subject  who  has  sought  refuge 
in  his  native  state  after  committing  a  crime  abroad. 

In  case  the  accused  whose  extradition  is  demanded  is  a 
citizen  of  a  third  state,  the  practice  is  not  uniform,  though 
the  best  authorities  seem  to  favor  the  granting  of  the  extra- 
dition only  after  communication  with  and  assent  of  the  third 
state,  on  the  ground  that  the  state  to  which  the  subject  has 
fled  is  responsible  to  the  third  state  for  its  treatment  of  him. 
This  practice  has  been  followed  in  many  European  treaties. 

»  4  Moore,  §§  580-588.       « ggott,  "Cases,"  274  ff.;  4  Moore,  §  582. 
3 1  Moore,  "Extradition,"  156. 


150  INTERNATIONAL  LAW 

Ordinarily,  not  all  criminals  are  liable  to  extradition,  though 
treaty  stipulations  may  cover  cases  usually  excepted.  Those 
accused  of  political  crimes  have,  since  the  early  part  of  the 
nineteenth  century,  been  more  and  more  generally  exempt 
from  extradition.  1  During  the  last  quarter  of  the  nineteenth 
century  few  treaties  have  been  made  which  do  not  make 
political  criminals  specifically  non  -  extraditable.  Political 
crimes  accompanied  by  attacks  upon  the  person  of  the  sover- 
eign or  of  those  holding  political  office  or  position  are 
not,  however,  in  the  above  category,  but  are  usually  extra- 
ditable, 

(6)  Even  when  an  accused  person  is  extradited  there  are 

limitations  as  to  the  jurisdiction  of  the  state  to  which  he  goes. 

The  trial  must  be  for  the  offense  or  offenses 

Limitations  as  i     •  i  -n  i 

to  jurisdiction    enumerated    m    the    treaty,     i^or    example,    a 
over  a  person     treaty  between  two  states  enumerates  among 

extradited.  ,       t,    i  i         •  i  i     i  x 

extraditable  crimes  murder,  and  does  not  enu- 
merate larceny.  A  fugitive  from  one  of  the  countries  is  accused 
of  both  murder  and  larceny.  The  country  surrendering  the 
criminal  would  not  permit  the  trial  of  the  criminal  for  any 
other  crime  than  murder,  until  the  criminal  should  have  had 
opportunity  to  return  to  the  state  from  which  he  was  sur- 
rendered. For  many  years  Great  Britain  claimed  that  a  per- 
son surrendered  in  accordance  with  an  extradition  treaty 
should  be  tried  only  for  the  specific  offense  for  which  he  was 
surrendered.  The  United  States  desired  to  include  other  of- 
fenses provided  the  person  had  been  once  surrendered. 
This  position  of  Great  Britain  was  accepted  by  the  treaty  of 
July  12,  1889.2 

(c)  The  conditions  necessary  for  a  claim  for  extradition 
are:  (1)  that  the  crime  shall  have  been  committed  within 
the  territorial  or  maritime  jurisdiction  of  the  state  making 

1  In  Re  Castioni,  1  L.  R.,  Queen's  Bench  [1891],  Div.  149;  Scott,  285. 

2  26  IJ.  S.  Sts.  at  Large,  1508;  Scott,  "Cases,"  274  ff.;  4  Moore,  §  596; 
1  Moore,  "Extradition,"  196  ff.;  1  Gould  and  Tucker,  987. 


JURISDICTION  151 

the  demand,  (2)  that  there  be  sufficient  evidence  of  guilt 
to  establish  a  case,  and  (3)  that  the  application  be  from  the 
Conditions  proper  authority  and  in  the  proper  form.^ 
necessary  for  {d)  The  procedure  in  cases  of  extradition  is 
extradition.  based  on  definite  principles.  As  it  is  an  act  of 
sovereignty,  it  must  be  performed  by  agents  of  the  sovereign 
person,  who  for  this  purpose,  although  generally  engaged  in 
Procedure  in  Other  functions,  are  executive  officers. 2  The 
cases  of  general  rule  is  that  the  demand  for  extradition 

extradition.       ^j^^jj  ^^  ^^^^  through  the  Ordinary  diplomatic 

channels.  In  colonies  and  under  special  circumstances  an  of- 
ficer of  first  rank  may  be  the  medium  of  the  demand. 

The  person  demanded  may  be  placed  under  provisional 
arrest  pending  the  full  proceedings  of  extradition. ^ 

Reasonable  evidence  of  the  identity  of  the  person  and  of 
the  facts  of  the  crime  must  be  furnished  by  the  state  making 
the  demand. 

In  case  a  person  is  demanded  by  two  states,  his  native  state 
and  a  third  state  in  which  he  has  committed  a  crime,  it  is 
customary  to  grant  the  request  of  the  state  in  which  he  has 
committed  the  crime. 

When  a  person  is  demanded  on  the  ground  of  separate 
crimes  committed  in  both  states  as  above,  if  the  crimes  are 
equally  grave,  the  request  of  his  native  state  is  granted. 
Sometimes,  however,  when  the  third  state  offers  to  surrender 
the  fugitive  to  his  native  state  after  he  has  paid  the  penalty 
of  his  crime,  the  request  of  the  third  state  is  granted. 

When  the  crime  committed  in  one  state  is  more  grave 
than  that  committed  in  another,  the  request  of  the  state 
maintaining  the  graver  charge  is  granted. 

1  26  U.  S.  Sts.  at  Large,  1510;  U.  S.  Rev.  Sts.,  §§  5270-5280;  1  Gould  and 
Tucker,  979-989;  4  Moore,  §  605. 

^  In  case  of  Chesapeake,  1863,  the  consul  acted  as  agent.  Wheat.  D., 
§  428,  note  207;  3  Pradier-Fod^re,  1876. 

3  3  Pradier-Foder^,  1877. 


152  INTERNATIONAL  LAW 

When  states  other  than  the  native  state  request  the  extra- 
dition of  a  fugitive,  the  state  receiving  the  demand  may  take 
into  consideration  the  gravity  of  the  offense  and  the  prob- 
ability that  a  given  state  will,  after  securing  justice,  make  it 
possible  for  other  states  to  prosecute  their  claims.  In  cases 
of  equal  gravity  priority  of  demand  usually  determines  the 
course  of  action.  ^ 

If  the  person  demanded  is  accused  of  a  crime  in  the  state 
of  refuge,  the  demand  for  his  extradition  may  be  refused 
pending  his  trial  in  the  state  of  refuge. 

Many  other  questions  arise  which  complicate  the  actual 
procedure  in  cases  of  extradition,  but  these  belong  mainly 
to  the  realm  of  private  international  law. 

68.     Servitudes 

Servitudes  in  international  law  constitute  a  restriction 
upon  the  exercise  of  the  territorial  jurisdiction  of  a  state  in 
favor  of  one  or  more  states. 

(a)  International  servitudes  are: — 

(1)  positive,  implying  that  a  state  is 
servitudes,  Under  obligation  to  permit  within  its  terri- 
positive  and  ^ory  another  state  to  exercise  certain  pow- 
ers, as  by  the  Treaty  of  Berlin,  1878,  Art. 
XXIX,  "The  administration  of  the  maritime  and  sani- 
tary police,  both  at  Antivari  and  along  the  coast  of 
Montenegro,  shall  be  carried  out  by  Austria-Hungary  by 
means  of  light  coast-guard  vessels";  ^ 

(2)  negative,  impljdng  that  a  state  is  to  refrain  from 

certain  acts,  otherwise  customary,  as  "Montenegro  shall 

neither  have  ships  of  war  nor  flag  of  war."  ^ 

Among  the  positive  servitudes  are:  those  obligations  of  a 

state  to  allow  within  its  own  jurisdiction  the  exercise  of  politi- 

'  "Annuaire  de  I'Tnstitut  de  droit  international,"  1881-1882,  p.  128. 
2 IV  Hertslet,  2783.  ^  /fej^. 


JURISDICTION  153 

cal  or  administrative  authority  by  another  state,  as  in  the 
execution  of  judicial  or  police  regulations;  those  obligations 
to  allow  the  exercise  of  military  authority,  as  in  military 
occupation  of  a  portion  of  the  territory  or  the  passage  of 
troops.  Among  the  negative  servitudes  are:  those  obligations 
(  f  a  state  to  refrain  from  exercising  within  its  own  jurisdic- 
tion certain  political  or  administrative  authority  which  might 
be  exercised,  if  the  servitude  did  not  exist,  as  in  the  exemption 
of  the  citizens  or  corporate  persons  of  certain  states  from  cer- 
tain acts  of  jurisdiction  or  taxation;  those  obligations  to 
refrain  from  military  acts,  such  as  the  limitation  of  the  army 
or  navy  to  a  certain  number,  or  the  obligation  not  to  fortify 
a  certain  place. 

(6)  There  are  also  servitudes  which  may  be  called  gen- 
eral,  because   binding  alike  upon  every  state 
servitudes.        ^^  favor  of  all   others,   such  as  the  innocent 
use  of  territorial  seas.^ 

*  For  the  general  question,  see  2  Pradier-Foddrd,  834,  845. 


OUTLINE  OF  CHAPTER  XII 
PROPERTY 

69.  PROPERTY  IN  GENERAL. 

70.  STATE  PROPERTY  IN  INTERNATIONAL  LAW. 


154 


CHAPTER  XII 
PROPERTY 

69.     Property  in  General 

The  term  "property"  has  been  used  in  varying  senses  by 
writers  upon  international  law.  By  virtue  of  the  fact  that 
a  state  has  jurisdiction  over  all  its  public  property  there  has 
sometimes  been  confusion  between  the  two  terms,  but  juris- 
diction may,  and  does,  extend  to  persons  and  things  of  which 
proprietorship  cannot  be  affirmed  by  the  state. 

In  the  sense  commonly  used  in  international  law  the  prop- 
erty of  a  state  is  held  to  be  all  the  lands  and  water  within  its 
limits.  Within  this  territory  the  state  has  rights  to  the 
exclusion  of  other  states,  and  upon  the  land  area  may  exer- 
cise the  right  of  eminent  domain. 

The  idea  of  property  in  this  international  sense  is  dis- 
tinct from  that  of  private  ownership,  which  is  merely 
relative  and  depends  upon  the  regulations  of  the  state;  in- 
deed, private  property  may  be  seized  for  the  debts  of  the 
state. 

A  state  may  hold  absolute  possession  of  such  objects  as 
are  capable  of  appropriation,  as  lands,  builcUngs,  and  other 
material  resources  for  public  purposes.  In  some  cases  the 
state  owns  the  railroads,  telegraphs,  mines,  etc.  In  time  of 
war  such  property  receives  treatment  somewhat  different 
from  that  of  private  property,  and  in  time  of  peace 
it  may  receive  special  recognition,  e.  g.  houses  of  ambas- 
sadors. 

155 


156  INTERNATIONAL  LAW 

70.     State  Property  in  International  Law 

Hall  outlines  this  subject  as  follows:  "A  state  may  own 
property  as  a  private  individual  within  the  jurisdiction  of 
another  state;  it  may  possess  the  immediate  as  well  as  the 
ultimate  property  in  movables,  land,  and  buildings  within 
its  own  territory;  and  it  may  hold  property  in  its  state  capac- 
ity in  places  not  belonging  to  its  owti  territory,  whether 
within  or  outside  the  jurisdiction  of  other  states."  ^  Prop- 
erty of  the  first  class  falls  under  the  local  law  of  the  state 
in  which  it  is.  Property  of  the  second  class  may  come 
within  the  scope  of  international  law  in  time  of  war.  Property 
of  the  third  class  may  come  within  the  scope  of  international 
law  both  in  time  of  peace  and  of  war. 

'  Hall,  p.  161. 


OUTLINE  OF  CHAPTER  XIII 

DIPLOMACY  AND  INTERNATIONAL  RELATIONS  IN 

TIMES   OF   PEACE 

71.  GENERAL   DEVELOPMENT   OF   DIPLOMACY. 

72.  DIPLOMATIC    AGENTS. 

(a)  History. 

(1)  Privileges  of  ambassadors. 

(2)  Diplomacy  as  an  art  in  Italy. 

(3)  Permanent  ambassadors  after  the  fifteenth  century. 

(4)  The  Peace  of  Westphalia,  1648,  the  begiiming  of  modern 

international  relations. 

(5)  Diplomatic  friction,  1648-1815. 

(b)  Rank  of  state  agents. 

(1)  Titles  of  diplomatic  agents. 

(o)  Diplomatic  agents  of  the  first  class. 

(b)  Envoys  extraordinary,  envoys  ordinary,  and  minis- 

ters plenipotentiary. 

(c)  Ministers  resident. 

(d)  Charges  d'affaires. 

(2)  Reciprocity  between  states  in  the  grade  of  agents. 

73.  SUITE,    OR    PERSONNEL    OF    A    MISSION. 

(a)  OfiBcial  suite  consists  of  the  functionaries. 

(b)  Non-oflBcial  suite  includes  the  family  and  household  servants  of 

the  agent. 

74.  WHO   MAY    SEND    DIPLOMATIC    AGENTS. 

75.  WHO    MAY    BE    SENT    AS    DIPLOMATIC    AGENTS. 

(a)  Case  of  Mr.  Keily. 

76.  CREDENTIALS,    INSTRUCTIONS    AND   PASSPORT. 

77.  DIPLOMATIC    CEREMONIAL. 

(a)  Historical  tendencies  in  ceremonial. 

(b)  Ceremonial  of  reception  of  an  agent. 

(c)  Rules  of  precedence  and  places  of  honor. 

(d)  Prerogatives  appertaining  to  diplomats  of  the  first  rank. 

(e)  Salutes  to  diplomatic  representatives. 

78.  FUNCTIONS    OF   A    DIPLOMATIC    REPRESENTATIVE. 
^^)  To  direct  the  internal  business  of  the  legation. 

(b)  To  conduct  the  negotiations  with  the  state  to  which  he  is  ac- 

credited. 

(c)  To  protect  fellow-citizens,  to  issue  and  vis6  passports  and  cer- 

tificates, and  to  present  and  certify  extradition  papers. 

(d)  To  make  reports  to  his  home  government. 

157 


79.  TERMINATION   OF   MISSION. 

(a)  Through  the  death  of  the  diplomat. 

(b)  In  ordinary  course  of  events. 

(c)  Under  strained  relations. 

(d)  Ceremonial  of  departure. 

80.  IMMUNITIES   AND    PRIVILEGES. 

(a)  Inviolability  of  the  person  of  the  diplomatic  agent. 

(1)  Basis  of  the  privilege. 

(2)  Extent  of  the  privilege. 

(3)  Limits  of  immunity. 

(b)  Exterritoriality  and  exemptions. 

(1)  Exemption  of  agent  from  the  criminal  jurisdiction  of  the 

receiving  state. 

(2)  Exemption  of  agent  from  civil  jurisdiction  of  the  receiving 
^  state. 

(3)  Immvmities  of  family  and  suite  of  agent. 

(4)  The  diplomatic  residence  exempt  from  local  jurisdiction. 

(5)  Right  of   asylum   in  the   house   of  the   ambassador  now 

generally  denied. 

(6)  Agent  generally  exempt  from  personal  taxes. 

(7)  Freedom  of  religious  worship. 

81.  DIPLOMATIC    PRACTICE   OF   THE   UNITED    STATES. 

(a)  International  relations  the  province  of  the  Department  of  State. 
',  (b)  Supreme  Court  has  original  jurisdiction  over  diplomatic  agents. 
^   (c)  Diplomatic  agents  forbidden  to  receive  presents. 

(d)  Diplomatic  agents  may  protect  subjects  of  other  friendly  powers 

in  case  of  revolution. 

(e)  Diplomatic  agents  forbidden  to  participate  in  the  political  con- 

cerns of  receiving  coimtry. 

(f)  Joint  action  with  diplomatic  agents  of  other  powers  at  a  foreign 

court  deprecated. 

(g)  Regulations  regarding  ofl&cial  dress, 
(h)  Compensation  of  diplomatic  agents. 

82.  CONSULS. 

(a)  History. 

(b)  Rank  of  consuls  a  matter  of  domestic  law. 

(c)  Nomination  and  reception  of  consuls. 

(d)  Great  variety  of  functions  of  the  consul. 

(1)  Duties  in  connection  with  commercial  interests. 

(2)  Duties  relating  to  maritime  service. 

(3)  Represents  certain  interests  of  his  fellow-citizens 

(4)  Furnishes  information  to  his  state. 

(e)  Special  powers  in  Eastern  states. 

(f)  Privileges  and  immunities  vary  in  different  states. 

(g)  Termination  of  the  consular  office. 

158 


CHAPTER  XIII 

DIPLOMACY     AND     INTERNATIONAL    RELATIONS    IN 

TIMES  OF   PEACE 

71.    General  Development  of  Diplomacy 

Diplomacy  may  be  broadly  defined  as  the  art  and  science 
of  international  negotiation.  The  conditions  which  make 
possible  established  relations  among  states  are  of  compara- 
tively recent  origin.  In  the  days  when  stranger  and  enemy 
were  not  distinguished,  and  when  "strange  air  made  a  man 
unfree,"  there  could  be  no  extended  relations  among  states. 
In  very  early  times,  however,  states  had  some  relations  with 
one  another,  and  a  few  general  principles  were  observed  in 
carrying  on  such  business  as  might  be  necessary.  These 
growing  relations  have  given  rise  to  what  is  known  as  the 
right  of  legation.  Sometimes  a  right  of  intercourse  between 
states  has  been  claimed  on  the  ground  that  the  citizens  of 
one  state  cannot  be  excluded  from  the  natural  advantages 
of  another  state,  on  the  ground  that  all  men  have  an  equal 
right  to  innocent  use  of  the  earth's  resources,  or  on  more 
abstract  grounds  of  moral  duty  variously  interpreted.  As 
the  actual  practice  of  states  never  has  recognized  such  a 
right,  to  contend  for  it  would  hardly  be  necessary.  States 
put  restrictions  upon  commerce,  even  to  the  exclusions  of 
goods  and  persons.  In  some  cases  where  the  terms  of  the 
state  enactment  may  not  be  prohibitive,  the  conditions  of 
admission  amount  to  practical  prohibition. ^ 

»  U.  S.  Chinese  Exclusion  Act,  1882,  1  Gould  and  Tucker,  502  et  seq. ; 
2  ibid.,  193  et  seq. 

159 


160  INTERNATIONAL  LAW 

The  influence  of  commerce  in  its  many  forms,  the  idea  of 
unity  of  mankind  in  its  various  manifestations,  the  growth 
of  neighborhood  on  the  part  of  European  states,  and  the 
necessity  of  respect  for  each  other  on  the  part  of  these  states, 
made  interstate  relations  imperative  and  convenient.  While 
the  right  of  intercourse  might  be  questioned,  the  necessity  and 
convenience  of  interstate  relations  admitted  of  no  question. 

72.     Diplomatic  Agents 

(a)  In  very  early  times  special  privileges  were  extended 
to  heralds,  ambassadors,  or  other  bearers  of  the  state  will. 
History:  Laws  ^  and  history  record  as  a  fact  this  practice 

PrivUeges  of  which  had  long  been  observed.  The  ambassador 
ambassa  ors.  ^^^  often  a  person  who  in  his  own  state  held 
some  priestly  office.  In  the  days  of  the  Roman  dominance, 
the  office  of  ambassador  was  commonly  exercised  by  one 
holding  a  religious  office,  and  while  the  unity  represented  by 
the  church  remained  prominent,  its  officials  were  often  am- 
bassadors. Both  from  necessity  and  from  the  sacred  charac- 
ter of  the  person,  the  ambassador  was  usually  regarded  as 
inviolable.  The  person  of  the  ambassador  was  respected 
long  before  there  was  any  recognition  of  the  rights  and  dig- 
nity of  states  as  states.  In  order  that  there  might  be  any 
such  intercourse,  it  was  necessary  that  the  agents  should  not 
be  placed  in  undue  personal  peril. ^ 

With  the  preeminence  of  the  Italian  city  states  in  the 

Middle  Ages  there  came  the  development  of  diplomacy  as 

an  art.     The  most  distinguished  men  of  the 

ip  omacy  as     ^jj^^g  y^Q^e  called  to  this  state  service.  Machia- 

an  art  in  Italy. 

velli's  name  is  inseparably  linked  to  one  school 
of  diplomacy.  Dante,  Petrarch,  Boccaccio,  and  others  whose 
names  have  become  famous,  were  sent  on  missions.  ^ 

'  Digest,  LVII,  17.  ^  3  Pradier-Fod6r6,  1233. 

^  Nys,  "Les  Origines  du  Droit  International,"  297. 


DIPLOMACY  AND   INTERNATIONAL  RELATIONS        161 

During  the  thirteenth  century,  Venice  outHned  the  policy 
which  her  ambassadors  should  follow,  and  there  the  system 
of  foreign  representation  became  well  established.  This  sys- 
tem included  the  granting  of  a  commission,  instructions^  let- 
ter of  credence,  attaches,  etc.  Italy  may,  indeed,  be  called 
the  home  of  the  diplomatic  system. 

For  many  years,  in  fact  till  comparatively  recent  times, 

ambassadors  were  looked  upon  with  suspicion,  as  spies  whom 

monarchs  were  more  willing  to  give  than  to 

PprmjHiGiit 

ambassadors  receive.  Gradually,  however,  the  practice  of 
after  the  fif-  sending  and  receiving  ambassadors  was  seen  to 
have  much  value.  During  the  fifteenth  century, 
which  marks  the  beginning  of  the  modern  period  in  the 
history  of  diplomacy,  the  practice  of  sending  permanent  am- 
bassadors seems  to  have  arisen.  There  may  have  been  iso- 
lated cases  of  sending  of  permanent  ambassadors  before  this, 
time,  but  from  the  fifteenth  century  the  practice  became 
more  and  more  common,  though  the  different  countries  did 
not  observe  any  uniform  regulations  as  to  personnel,  pro- 
cedure, or  in  other  respects.  From  this  time  diplomacy 
became  more  of  a  career,  and  one  going  on  a  mission  to  a 
foreign  country  received  careful  preparation  that  he  might 
outwit  the  representatives  of  the  state  to  which  he  was  sent. 
Sir  Henry  Wotton's  oft-quoted  definition  of  an  ambassador, 
"  An  ambassador  is  an  honest  man,  sent  to  lie  abroad  for  the 
good  of  his  country,"  ^  describes  the  attitude  taken  in  many 
countries  toward  the  office,  when  early  in  the  seventeenth 
century  he  wrote  the  definition  in  Christopher  Flecamore's 
album.  Gradually  the  rules  of  international  negotiation  be- 
came established,  and  treatises  upon  the  subject  appeared. 

The  Peace  of  Westphalia  in  1648,  which  marks  the  begin- 
ning of  modern  international  relations,  showed  that  modern 
diplomacy  had  already  obtained  a  recognition,  and  served  to 

'  Walton,  "Life  of  Wotton,"  155. 


162  INTERNATIONAL  LAW 

give  it  a  more  definite  form.  This  date  serves  as  a  boundary 
to  the  first  division  of  the  modern  period  in  the  history  of 
diplomacy.  The  years  from  the  early  part  of 
We^stpiTaUa!'^  ^^^  fifteenth  century  to  the  Peace  of  Westphalia 
are  the  years  of  beginnings.  From  this  time  the 
system  of  permanent  ministers,  which  so  greatly  changed  the 
character  of  international  negotiations,  became  almost  a  ne- 
cessity through  the  development  of  the  equilibrium  of  the 
states  of  Europe.  ^ 

During  the  years  1648  to  1815  the  relations  of  states  be- 
came more  complex,  and  the  business  of  international  nego- 
tiation   more    delicate.     Diplomatic    practice, 
tiin!°w48-i8i5.  ^^w^ys  tending  to  look  to  precedent,  suffered 

— severe  strains  under  the  ambitious  monarchs 

occupying  the  thrones  of  Europe  after  the  Peace  of  West- 
phalia. Principles  and  precedent  were  often  disregarded  to 
obtain  political  ends.  So  great  was  the  friction  that  at  length 
some  of  the  more  commonly  disputed  questions  were  settled 
at  the  Congress  of  Vienna,  1815. 

(6)  The  question  of  relative  rank  of  state  agents  gave 
rise,  in  the  days  before  the  Congress  of  Vienna,  to  many 
difficulties.  The  protocol  of  that  Congress  of 
fge°nts°^  '***'  M^^ch  9,  1815,  together  with  the  eighth  article 
adopted  at  the  Congress  of  Aix-la-Chapelle, 
November  21,  1818,  gives  the  basis  of  present  practice  as 
follows : — 

"In  order  to  prevent  in  future  the  inconveniences  which 
have  frequently  occurred,  and  which  may  still  occur,  from 
the  claims  of  Precedence  among  the  different  Diplomatic 
characters,  the  Plenipotentiaries  of  the  Powers  who  signed 
the  Treaty  of  Paris  have  agreed  on  the  following  Articles, 
and  think  it  their  duty  to  invite  those  of  other  Crowned  Heads 
to  adopt  the  same  regulations : — 

» Calvo,  §  1311  ff. 


DIPLOMACY  AND  INTERNATIONAL  RELATIONS       163 


Division  of  Diplomatic  Characters 

Art.  I.  Diplomatic  characters  are  divided  into  Three 
classes:  That  of  Ambassadors,  Legates,  or  Nuncios. 

That  of  Envoys,  Ministers,  or  other  persons  accredited  to 
Sovereigns. 

That  of  Charges  d'Affaires  accredited  to  Ministers  for  foreign 
affairs. 

Representative  Character 

Art.  II.  Ambassadors,  Legates,  or  Nuncios  only  shall  have 
the  Representative  character. 

Special  Missions 

Art.  III.  Diplomatic  characters  charged  with  any  special 
Mission  shall  not,  on  that  account,  assume  any  superiority  of 
Rank. 

Diplomatic  Precedence 

Art.  IV.  Diplomatic  characters  shall  rank  in  their  respec- 
tive classes  according  to  the  date  of  the  official  notification 
of  their  arrival. 

Representatives  of  the  Pope 

The  present  Regulation  shall  not  occasion  any  change  re- 
specting the  Representative  of  the  Pope. 

Form  for  Reception  of  Diplomatic  Agents 

Art.  V.  There  shall  be  a  regular  form  adopted  by  each 
State  for  the  reception  of  Diplomatic  Characters  of  every  Class. 

Diplomatic   Agents   of   Courts   allied    by    Family   or 

Other  Ties 

Art.  VI.  Ties  of  consanguinity  or  family  alliance  between 
Courts  confer  no  Rank  on  their  Diplomatic  Agents.  The  same 
rule  also  applies  to  political  alliances. 


164  INTERNATIONAL  LAW 

Alternation  of  Signatures  in  Acts  or  Treaties 

Art.  VII.  In  Acts  or  Treaties  between  several  Powers  that 
admit  alternity,  the  order  which  is  to  be  observed  in  the  signa- 
tures of  Ministers  shall  be  decided  by  ballot. ^ 

Art.  VIII.  It  is  agreed  between  the  Five  Courts  that 
Ministers  Resident  accredited  to  them  shall  form,  with  respect 
to  their  Precedence,  an  intermediate  class  between  Ministers 
of  the  Second  Class  and  Charges  d'Affaires."  ^ 

To  the  articles,  except  the  last,  Austria,  Spain,  France, 
Great  Britain,  Portugal,  Prussia,  Russia,  and  Sweden  were 
parties.  Spain,  Portugal,  and  Sweden  were  not  parties  to 
the  eighth  article.  Theoretically  these  rules  are  binding  only 
upon  those  states  parties  to  the  treaties,  but  practically  they 
are  accepted  by  all  civilized  states. 

The  four  grades  are  as  follows : — 
^..-J:  Ambassadors,  legates,  and  nuncios. 
..2.  Envoys,  ministers,  or  other  persons  accredited  to  sov- 
ereigns. 

3.  Ministers  resident. 

4.  Charges  d'affaires. 

The  first  three  grades  are  accredited  to  the  sovereign.  The 
fourth  grade,  charges  d'affaires,  is  accredited  to  the  minister 
of  foreign  affairs. 

(1)  The  rank  of  the  agent  does  not  necessarily  have  any 
Titles  of  relation  to  the  importance  of  the  business  which 

diplomatic  may  be  intrusted  to  him.  The  titles  given  to  the 
agen  s.  different  diplomatic  agents,  at  the  present  time, 

are  in  a  general  way  descriptive,  as  follows : — 

(a)  Diplomatic  agents  of  the  first  class  are  held  to  represent, 
the  person  of  _the  sovereign.     Ambassador  ordinary  formerly 

'  I  Hertslet,  62.  63. 

^  Ibid.,  575.  These  rules  have  been  adopted  by  the  U.  S.  Department 
of  State. 


DIPLOMACY  AND   INTERNATIONAL  RELATIONS        165 

designated  one  holding  a  permanent  mission.  Ambassador 
extraordinary  designated  one  on  a  special  mission,  or  having 
power  to  act  in  exceptional  circumstances.  This,  however, 
is  now  simply  a  title  of  somewhat  superior  honor  giving  no 
other  advantage.  Papal  legates  and  nuncios  rank,  and  for 
practical  purposes,  are,  ambassadors  extraordinary,  though 
representing  particularly  ecclesiastical  affairs  and  the  Pope 
as  head  of  the  Church.  Legates  are  chosen  from  the  cardi- 
nals and  sent  to  countries  recognizing  the  papal  supremacy.^ 
The  representative  of  the  Pope  is  usually  accorded  the 
position  of  ''Doyen"  of  the  "Diplomatic  Corps"  in  states 
receiving  representatives  of  the  Pope.  Otherwise,  the 
"Doyen"  is  the  senior  diplomat  of  the  highest  rank. 

(b)  Envoys  extraordinary,  envoys  ordinary,  and  ministers 
plenipotentiary  have  in  general  the  same  functions  and  rank. 
With  these  rank  the  papal  internuncio.  The  general  idea  is 
that  the  agents  of  the  second  class  do  not  stand  for  the 
person  of  the  sovereign,  but  for  the  state. 

(c)  Ministers  resident  are  regarded  as  upon  a  less  im- 
portant mission  than  the  agents  of  the  first  or  second  class. 
They  are  frequently  sent  by  the  greater  powers  to  the  lesser 
powers. 

(d)  Charges  d'affaires  ceremonially  rank  below  the  ministers 
resident.  They  are  accredited  to  the  minister  of  foreign 
affairs,  while  members  of  the  first  three  classes  are  accredited 
to  the  sovereign.  A  charge  d'affaires  may  perform  the  func- 
tions of  the  higher  grades  of  agents  and  has  the  same  general 
privileges.  When  a  consul  is  charged  with  a  diplomatic  mis- 
sion he  ranks  with  the  charges  d'affaires.  Commissioners  on 
various  missions  are  sometimes  accorded  the  same  rank ;  but, 
as  they  do  not  bear  the  title,  commissioners  cannot  claim  the 
rank  of  the  charge  d'affaires,  though  in  their  functions  there 
may  be  no  difference. 

»  Calvo,  §  1328  ff. 


166  INTERNATIONAL  LAW 

(2)  There  is  no  rule  as  to  the  grade  of  diplomatic  agent 
which  one  state  shall  send  to  another,  though  it  was  formerly 

Reciprocity  as  ^^^^  ^^^*  ^^^  states  entitled  to  royal  honors 
to  the  grade  could  Send  ambassadors.  It  is  now  customary  for 
of  agents.  states  to  agree  among  themselves  as  to  the  rela- 

tive ranks  of  their  diplomatic  agents.  Thus  the  United  States 
by  an  act  of  1893  provided  that  "whenever  the  President 
shall  be  advised  that  any  foreign  government  is  represented 
or  is  about  to  be  represented  in  the  United  States  by  an 
ambassador,  envoy  extraordinary,  minister  plenipotentiary, 
minister  resident,  or  special,  envoy  or  charge  d'affaires,  he  is 
authorized  in  his  discretion  to  direct  that  the  representative 
of  United  States  to  such  government  shall  bear  the  same 
designation.  This  provision  shall  in  no  wise  affect  the  duties, 
powers,  or  salary  of  such  representative."  ^ 

The  rank  of  a  diplomatic  agent  is  a  mark  of  dignity  and 
honor  particularly  of  consequence  in  matters  of  etiquette  and 
ceremonial.  Reciprocity  between  states  is  the  general  rule 
in  the  grade  of  agents.  The  old  theory  that  agents  of  the 
first  rank  had  access  to  the  ear  of  the  sovereign  is  no  longer 
held,  and  all  grades  alike  represent  both  the  sovereign  and 
the  state  from  which  they  come. 

73.    Suite 

The  personnel  of  a  mission  may  be  distinguished  as^the 
official  and  the  non-official. 

(a)  The  official   suite  consists  of  the  functionaries,   and 

varies  in  number  according  to  the  dignity  and  importance  of 

the  mission.     Formerly  the  number  was  scruti- 

Oflacial  suite.  .       ,       .  ,  •        x      ^i       <•         j.t,    j. 

mzed  with  great  care,  owmg  to  the  tear  that  a 

numerous  suite  might  endanger  the  safety  of  the  receiving 

state.     The  ofl^cial  suite  may  include,  (1)  the  counsel  to  the 

mission,  (2)  the  secretaries,  (3)  the  attaches,  military,  naval, 

'  March  1,  1893,  27  U.  S.  Sts.  at  Large,  c.  182. 


DIPLOMACY  AND  INTERNATIONAL  RELATIONS         167 

and  others,  (4)  the  interpreters  and  dragomans,  (5)  the  clerks 
and  accountants,  (6)  the  couriers,  (7)  the  chaplain,  (8)  the 
doctor,  and  in  some  instances  other  officers  necessary  for  the 
performance  of  the  official  functions. 

(6)  The  non-official  suite  includes  the  family  of  the  dip- 
lomatic agent  and  those  in  his  household  em- 
Non-officiai  i^^^     rpj^^g  ^^^  include,  beside  his  immediate 

family,  (1)  the  private  chaplain,  (2)  the  private 
doctor,  (3)  the  private  secretaries,  (4)  the  domestic  servants 
of  various  grades. 

74.     Who  May  Send  Diplomatic  Agents 

It  is  the  general  rule  that  sovereign  states  only  may  send 
ambassadors  or  other  diplomatic  agents.  Sometimes  diplo- 
matic relations  are  maintained  between  states  when  both  are 
not  fully  sovereign,  as  in  the  relations  between  Bavaria,  a 
member  of  the  German  Empire,  and  France.  In  general, 
where  the  sovereignty  of  a  state  is  not  complete,  its  right  of 
legation  is  fixed  by  the  treaty  which  impairs  its  sovereignty. 
A  state  which  has  not  full  sovereign  powers  may  have  a  par- 
tial right  of  legation,  either  active  or  passive,  or  a  right  to 
send  diplomatic  agents  with  limited  functions. 

The  sending  of  a  diplomatic  agent  is  essentially  an  act  of 
the  sovereign  person,  whether  he  be  a  monarch,  president, 
council,  or  have  other  title.  The  domestic  law  determines 
who  this  person  shall  be.  International  law  makes  no  dis- 
tinction. 

In  each  state  a  department,  usually  called  the  department 
of  foreign  affairs,  has  the  business  of  international  inter- 
course in  charge.  The  organization  of  this  department  and 
the  general  methods  are  matters  of  domestic  law.  All  foreign 
states  need  to  know  is  to  what  extent  this  department  is  com- 
petent to  carry  on  negotiations. 


168  INTERNATIONAL  LAW 

75.     Who  May  Be  Sent 

f  Before  actually  sending  a  diplomatic  agent,  a  state  usually 
'obtains  assurance  from  the  receiving  state  that  the  proposed 
agent  will  be  an  acceptable  person.  If  the  proposed  agent 
is  a  persona  non  grata,  it  is  held  that  the  foreign  state  is  not 
obliged  to  give  its  reasons  for  refusing  to  receive  him.  To 
refuse  a  given  person  does  not  imply  any  lack  of  courtesy 
to  the  sending  state  on  the  part  of  the  refusing  state.  A  state 
may  refuse  to  receive  one  of  its  own  citizens  as  the  minis- 
ter of  a  foreign  state.  Sometimes  states  have  refused  to 
receive  those  who  have  in  the  sending  state  taken  po- 
sitions manifesting  hostile  disposition  toward  the  receiving 
state. 

In  1885  the  Italian  government  refused  to  receive  Mr. 
Keily  as  United  States  representative  on  the  ground  that  he 

had  denounced  the  overthrow  of  the  temporal 
M  V  u  power  of  the  Pope.     It  was  considered  probable 

that  one  who  had  taken  so  decided  an  attitude 
toward  an  action  of  the  government  to  which  he  was  sent 
would  hardly  be  acceptable.  Mr.  Keily  had  just  before  been 
refused  by  Austria-Hungary  on  the  ground  that  his  wife  was 
a  Jewess  and  his  marriage  only  a  civil  one.  President  Cleve- 
land showed  his  attitude  toward  this  action  in  his  first 
annual  message,  1885.  "The  Austro-Hungarian  government 
finally  decided  not  to  receive  Mr.  Keily  as  the  envoy  of  the 
United  States,  and  that  gentleman  has  since  resigned  his 
commission,  leaving  the  post  vacant.  I  have  made  no  new 
nomination,  and  the  interests  of  this  government  at  Vienna 
are  now  in  the  care  of  the  secretary  of  legation,  acting  as 
charg^  d'affaires  ad  interim^  ^ 

>  4  Moore,  §  638. 


DIPLOMACY  AND   INTERNATIONAL   RELATIONS       169 


16.     Credentials,  Instructions,  Passport 

Before  starting  upon  his  mission,  a  diplomatic  represen- 
tative receives,  if  of   one   of    the   first   three   classes,  from 
the  head  of  the  state,  if  of  the  fourth  class 
Letters  of  (charge  d'affaires),  from  the  minister  of  foreign 

credence.  \  o  /?  t, 

affairs,  a  letter  of  credence.  In  the  United 
States  the  President  signs  the  letters  of  credence  of  diplo- 
matic agents  above  the  rank  of  charg^  d'affaires.  In  these 
instances  the  letter  is  addressed  to  the  head  of  the  foreign 
state.  In  the  case  of  charge  d'affaires  the  letter  is  addressed 
to  the  minister  of  foreign  affairs  and  signed  by  the  Secretary 
of  State.  A  letter  of  credence  gives  the  name,  the  character 
and  general  object  of  the  mission,  and  requests  for  the  agent 
full  faith  and  credence  as  the  state's  representative.  In  case 
of  representatives  to  Turkey,  besides  the  letter  to  the  Sultan, 
formerly  letters  were  also  taken  to  the  grand  vizier  and  to 
the  minister  of  foreign  affairs.  Representatives  of  the  Pope 
carry  in  place  of  letters  of  credence  papal  bulls.  Sometimes 
a  diplomatic  agent  receives  also  letters  of  recommendation 
to  persons  of  importance  in  the  foreign  country.  These  let- 
ters have  a  semi-official  character  in  many  cases.  While  a 
letter  of  credence  may  give  power  to  open  treaty  nego- 
tiations, it  is  usual  to  give  a  special  letter  conferring  /w/Z 
povjers  or  general  full  powers  to  close  and  sign  a  treaty,  or 
to  act  in  behalf  of  the  state  in  some  manner  not  covered 
by  his  instructions.  These  letters  are  commonly  letters 
patent. 

The  diplomatic  agent  also  customarily  receives  instruc- 
tions which  may  be  either  for  his  own  guidance  or  to  be 
communicated  to  the  foreign  state.     If  to  be 
communicated  to  the  foreign  state,  the  instruc- 
tions   make    more     fully     known     his    special     functions. 
In   all    cases  the  agent  is  bound  by  his  instructions,  and 


170  INTERNATIONAL  LAW 

should  there  be  doubt  as  to  method  of  action  it  is  easy,  in 
these  days  of  rapid  communication,  to  entertain  a  matter  ad 
referendum. 

The  diplomatic  agent  also  receives  for  himself,  family  and 

suite,  a  special  passport.     The  special  passport  "differs  from 

the  ordinary  passport  in  that  it  usually  de- 

Speciai  scribes  the  official  rank  or  occupation  of  the 

passport.  ^ 

holder,  and  often  also  the  purpose  of  his  travel- 
ing abroad,  while  generally  omitting  the  description  of  his 
person."  ^  This  may  serve  not  only  the  purpose  of  the 
ordinary  passport,  but  may  also  give  an  official  introduction 
to  the  bearer. 

The  papers  furnished  to  diplomatic  representatives  of  the 
United  States  include: — 

'"1.  A  sealed  letter  of  credence  to  the  head  of  the  state 
or  minister  of  foreign  affairs  according  to  rank  of  the 
representative. 

2.  "An  open  office  copy  of  the  letter  of  credence." 

3.  The  special  passport  above  mentioned. 

4.  "A  copy  of  the  Register  of  the  Department  of 
State." 

5.  A  letter  of  credit  upon  the  bankers  of  the  United 
States. 

6.  A  copy  of  Instructions  to  the  Diplomatic  Officers 
of  the  United  States. 

7.  A  copy  of  the  Consular  Regulations  of  the  United 
States. 

»  "  The  American  Passport,"  U.  S.  Dept.  State,  1898,  p.  7. 


DIPLOMACY  AND   INTERNATIONAL  RELATIONS        171 

(form  of) 

LETTER  OF  CREDENCE 
A B , 

President  of  the  United  States  of  America. 


To. 


Great  and  Good  Friend: 

I  have  made  choice  of 

one  of  our  distinguished    citizens,    to    reside  near  the  Government  of 

Your in  the  quahty  of 

He  is  well  informed  of  the  relative  interests  of  the  two  countries  and 
of  our  sincere  desire  to  cultivate  to  the  fullest  extent  the  friendship 
which  has  so  long  subsisted  between  the  two  Governments.  My  knowl- 
edge of  his  high  character  and  ability  gives  me  entire  confidence  that  he 
will  constantly  endeavor  to  advance  the  interest  and  prosperity  of  both 
Governments,  and  so  render  himself  acceptable  to  Your 

I  therefore  request  Your to  receive  him  favorably  and 

to  give  full  credence  to  what  he  shall  say  on  the  part  of  the  United  States, 
and  to  the  assurances  which  I  have  charged  him  to  convey  to  you  of  the 
best  wishes  of  this  Government  for  the  prosperity  of 

May  God  have  Your in  His  wise  keeping. 

Written  at  Washington  this day  of in  the 

year 

Your  good  friend, 

A B 

By  the  President, 


Secretary  of  State. 

77.     Diplomatic  Ceremonial 

(a)  In  certain  countries  diplomatic  ceremonial  has  been 
very  elaborate  and  complex.  The  tendency  during  the  nine- 
teenth century  was  toward  simplification.  Each  state  has  the 
power  to  determine  its  own  ceremonial  for  the  most  part.^ 

» Taylor,  "International  Public  Law,"  323. 


172  INTERNATIONAL  LAW 

Of  course  no  state  can  disregard  established  rules  as  to  rank, 
precedence,  and  similarly  generally  recognized  practices.  At 
Historical  ^^^  time  when  these  practices  originated  it  was 

tendencies  in  imperative  that  there  should  be  some  fixed 
ceremonial.  mode  of  procedure  which  a  state  could  follow 
without  giving  offense  in  its  treatment  of  a  foreign  represen- 
tative. Much  of  the  ceremonial  became  fixed  during  the 
latter  part  of  the  seventeenth  and  during  the  eighteenth  cen- 
tury. In  the  days  of  absolutism  the  monarch  naturally 
demanded  such  recognition  of  his  representative  in  a  foreign 
country  as  befitted  his  own  estimate  of  the  dignity  of  the 
monarchical  office.  It  may  not  be  unfortunate  that  the  mon- 
arch placed  a  high  estimate  upon  the  sovereign  office  and  de- 
vised a  ceremonial  commensurate  with  this  estimate,  for 
what  was  once  done  out  of  respect  for  and  in  response  to 
the  demand  of  a  personal  sovereign,  is  now  done  out  of 
respect  for  the  dignity  of  the  state  itself.  Thus  in  the  days 
of  more  democratic  sovereignties  international  representatives 
are  clothed  with  a  dignity  which  both  elevates  the  attitude 
of  participants  in  international  negotiations  and  gives  greater 
weight  to  their  conclusions.  The  ceremonial  also  fixes  a 
definite  course  of  procedure  which  any  state  may  follow 
without  giving  offense  to  another,  whether  it  be  weak  or 
powerful. 

(6)  While  the  minor  details  of  the  ceremonial  of  reception 

of  a  diplomatic  agent  are  not  invariable,  certain  customs, 

are  well  established.     A  diplomat  officially  noti- 

eception  o       ^^^  ^^iq  receiving  state  of  his  arrival  by  sending, 

an  agent.  ^  j  ny 

(1)  if  he  be  of  the  first  rank,  a  secretary  of  the 
embassy  to  the  minister  of  foreign  affairs,  with  a  copy  of  his 
letter  of  credence  and  a  request  for  a  day  and  hour  when 
he  may  have  an  audience  with  the  head  of  the  state  in  order 
to  present  his  credentials,  (2)  if  of  the  second  rank,  while 
sometimes  the  above  procedure  is  allowed,  he  usually  makes 


DIPLOMACY  AND   INTERNATIONAL  RELATIONS         173 

the  announcement  and  request  in  writing,  (3)  if  of  the  third 
rank  he  always  observes  the  last-mentioned  procedure,  (4) 
if  of  the  fourth  rank,  charge  d'affaires,  he  notifies  the  minis- 
ter of  foreign  affairs  of  his  arrival  and  requests  an  audience. 

The  audience  may  be  for  any  grade  more  or  less  formal, 
public  or  private.  Usually  diplomats  of  the  first  rank  are 
received  in  public  audience.  At  the  audience  the  diplomat 
presents  his  letter  of  credence,  and  usually  makes  a  brief 
address,  of  which  he  has  earlier  furnished  a  copy  to  the  min- 
ister of  foreign  affairs  in  order  that  a  suitable  reply  may  be 
prepared.  Diplomats  of  the  second  rank  customarily  receive 
a  similar  solemn  audience.  This  may  or  may  not  be  granted 
to  ministers  of  the  third  rank.  Official  visits,  varying  some- 
what in  ceremonial  in  different  states,  follow. 

(c)  From  the  time  when  permanent  missions  began  to  be 

common,   conflict  between  the  representatives  of  different 

states  made  necessary  fixed  rules  of  precedence. 

Rules  of  ^g  Wicquefort  said  in  the  latter  part  of  the 

precedence.  ^ 

seventeenth  century,  "One  of  the  thmgs  that 

most  hinders  Embassadors  from  paying  one  another  civilities, 

is  the  Contest  they  have  concerning  Honours  and  Rank;  not 

only  on  Account  of  the  Competition  of  their  Masters,  but 

sometimes  also  by  Reason  of  some  Pretensions  they  have 

amongst  themselves."  ^     Wicquefort's  citations  of  cases  give 

ample  evidence  of  the  confusion  prevailing  in  his  day.     Bj^n- 

kershoek,  in  "De  Foro  Legatorum,"  Chapters  I  and  XII, 

shows  that  the  confusion  was  scarcely  less  in  1721,  though 

the  rank  by  title  was  coming  to  be  more  fully  recognized. 

Vattel  in  1758  shows  that  there  had  arisen  a  more  definite 

ceremonial  ^  and  a  fairly  clear  gradation,  yet  as  this  had  never 

been  agreed  to  by  any  considerable  number  of  states,  and  was 

not  in  accordance  with  any  generally  recognized  principle, 

1  Wicquefort,   "The  Embassador  and    His  Functions,"  Digby's  trans- 
lation, Ch.  XXII,  p.  201. 

2 :' Droit  des  gens,"  Liv.  IV,  Ch.  VL 


174  INTERNATIONAL  LAW 

there  were  contests  still.  By  the  Congresses  of  Vienna  (1815) 
and  Aix-la-Chapelle  (1818)  many  of  the  disputed  points  in 
regard  to  precedence  were  adjusted.  Certain  general  prop- 
ositions are  now  admitted,  such  as,  that  no  diplomat  can 
pretend  to  special  honors  or  immunities  above  other  diplo- 
mats of  the  same  rank.i  The  rule  of  the  Congress  of  Vienna 
I  is  followed,  by  which  diplomats  of  the  same  class  rank  accord- 
ing to  the  precedence  in  the  date  of  the  official  notification 
of  their,  arrival. 

Places  of  honor  are  now  quite  definitely  fixed.    On  cere- 
monial occasions,  where  the  representatives  are  seated  at  a 
table,  as  in  an  international  congress,  it  may 

Places  of  j_jg  somewhat  varied  as  fronting  the  main  win- 

honor.  _  ^ 

dow,  opposite  the  main  entrance  to  the  room, 

in  the  place  receiving  the  light  over  the  left  shoulder.  When 
the  place  is  determined  by  the  relation  to  the  head  of  the 
table  or  the  presiding  officer,  the  first  honor,  except  in  Turkey, 
is  at  his  right,  the  second  at  his  left,  the  third  in  the  second 
place  on  the  right,  the  fourth  in  the  second  place  on  the  left, 
and  so  on.  In  processions  the  place  of  honor  is  sometimes 
first,  sometimes  last.  For  relatively  short  processions,  cer- 
tain more  definite  rules  are  usually  observed.  When  only 
two  participate,  the  first  place  is  the  place  of  honor;  when 
three  participate,  the  middle  place,  the  place  in  advance  being 
the  second  honor  and  the  place  in  the  rear  the  third;  when 
four  participate,  the  second  place  is  the  place  of  honor^  the 
place  in  advance  the  second,  the  third  and  fourth  being  in 
honor  in  order;  when  five  participate,  the  middle  is  the  place 
of  honor,  the  second  place  being  the  second  in  honor,  the 
first  the  fourth  in  honor,  the  fourth  the  third  in  honor,  and 
the  fifth  the  fifth  in  honor.^ 
To  avoid  friction  as  to  place  of  honor  in  signing  treaties, 

>  Calvo,  §  1328  ff. 

'  Lehr,  "Manuel  des  Agents  Diplomatiques,"  §  367  ff. 


DIPLOMACY  AND   INTERNATIONAL  RELATIONS        175 

etc.,  the  principle  of  the  alternat  is  usually  followed,  by  which 
the  copy  going  to  a  given  nation  has  the  name  of  its  own 
representative  first  in  order, ^  Sometimes  the  order  is  deter- 
mined by  lot,  and  sometimes  is  alphabetical  in  the  order  of 
the  names  of  the  states  parties  to  the  treaty. 

{d)  Certain  prerogatives  are  held  to  appertain  to  the  office 

of  ambassador  and  to  diplomats  of  the  first  rank.     Among 

these  are:  (1)  the  title  of  Excellency,   (2)  the 

eroga  ives.     j.jg}^^  ^^  remain  covered  in  the  presence  of  the 

sovereign,  unless  the  sovereign  himself  is  uncovered,  (3) 
the  privilege  of  a  dais  in  his  own  home,  (4)  the  right 
to  use  a  "coach  and  six"  with  outriders,  (5)  military  and 
naval  honors,  (6)  the  use  of  the  coat  of  arms  over  the  door, 
(7)  invitations  to  all  court  ceremonies.  This  last  is  usually 
extended  to  all  diplomats.  Those  of  lower  rank  than  the 
ambassador  sometimes  claim  modified  forms  of  the  above 
prerogatives. 

Many  of  the  interesting  phases  of  diplomatic  ceremonial 
are  survivals  of  forms  which  in  earlier  days  were  most  jeal- 
ously and  strenuously  guarded.  The  closer  relations  of  states 
and  better  understanding  of  mutual  relations  have  made  un- 
necessary the  observance  of  many  forms  once  vital  to  harmony. 

Many  courtesies  are  regarded  as  due  diplomatic  representa- 
tives by  virtue  of  their  rank.  These  are  not  uniform  at  the 
various  courts,  but  generally  include,  notification  of  accession 
to  the  throne,  notifications  of  births  and  deaths  in  the  royal 
family,  congratulations  and  condolences  as  public  events 
warrant,  and  many  others. 

(e)  Diplomats  are  also  entitled  to  receive  salutes,  which  are 
usually  arranged  for  in  advance.  The  ambassador  receives  a 
salute  of  nineteen^guns;  envoys  extraordinary 
and  minister  plenipotentiary,  fifteen;  the  minis- 
ter resident,  thirteen;  and  the  charge  d'affau-es,  eleven. 

•  The  Department  of  State  instructs  the  representatives  of  the  United 
States  to  follow  this  practice. 


176  INTERNATIONAL  LAW 

78.     Functions  of  a  Diplomatic  Representative 

The  functions  of  a  diplomatic  representative  in  a  broad 
sense  are,  to  direct  the  internal  business  of  the  legation,  to 
conduct  the  negotiations  with  the  state  to  which  he  is  accred- 
ited, to  protect  citizens  of  his  state  ^  and  to  issue  passports 
under  proper  restrictions,^  and  to  make  reports  to  his  home 
government. 

(a)  The  internal  business  of  the  mission  may  in  general 
be  classified  as  concerned  with  (1)  the  custody  of  archives, 
Internal  (•^)    diplomatic    correspondence^    involving   at 

business  of  times  the  use  of  cipher,  (3)  record  of  the  work 
the  legation.  ^£  ^^^  legation,  (4)  the  exercise  of  a  measure 
of  jurisdiction  over  the  household.  In  grave  cases  the  diplo- 
mat must  send  the  offender  home  for  trial,  or  under  certain 
circumstances,  if  a  native  of  the  state,  hand  the  offender  over 
to  the  local  authorities.  Otherwise  his  jurisdiction  is  mainly 
of  a  minor  disciplinary  sort.  The  assumption  of  such  au- 
thority as  claimed  by  Sully,  in  1603,  when  he  tried  and  con- 
demned to  death  one  of  the  French  suite,  is  now  absolutely 
denied.  Indeed,  James  I  pardoned  the  offender  whom  Sully 
had  delivered  to  him  for  execution.  In  1896  Great  Britain 
denied  the  right  of  the  Chinese  ambassador  to  detain  a  China- 
man who  was  held  in  the  legation  under  charge  of  political 
conspiracy,  and  compelled  his  release. 

(h)  The  conduct  of  negotiations  with  the  state  to  which 
the  representative  is  accredited  may  involve,  (1)  verbal  com- 
munications with  the  sovereign  or  ministers. 
Conduct  of        fpj^g  purport  of  such  communications  may  be 

negotiations.  '       '  ^   ^  *' 

preserved  in  writing  known  as  briefs  of  the  con- 
versation, or  aids  to  the  memory.     In  cases  of  somewhat  formal 

>  IT.  S.  Rev.  Sts.,  §  2000.  Ubid.,  §  4075. 

'Till  the  reign  of  Louis  XIV,  Latin  was  the  language  of  diplomacy; 
from  that  time,  French  became  more  and  more  used.  Since  the  Congress 
of  Vienna,  1815,  any  language  may  be  used  without  offense.     Art.  120. 


DIPLOMACY  AND   INTERNATIONAL   RELATIONS        177 

conversations  the  written  reports  may  be  called  notes  or 
memoranda.  To  the  proces-verbaux,  or  reports  of  international 
conferences  for  the  discussion  of  treaty  stipulations,  the  name 
protocol  is  usually  given.  (2)  Formal  communications  with 
the  sovereign  or  ministers ;  (3)  the  maintenance  of  diplomatic 
privileges  and  immunities ;  (4)  such  action  as  may  be  neces- 
sary to  protect  his  state's  interests  so  far  as  possible,  and 
particularly  its  treaty  rights. 

(c)  The  diplomat's  relations  to  the  citizens  of  his  own 
country  are  largely  determined  by  the  domestic  law  of  his 

own  state,  and  usually  involve,  (1)  a  measure 
Relation  to        ^^  protection  to  his  fellow-citizens;  (2)  issue  and 

fellow-citizens.         ^  ;    v  / 

vise  of  passports,   and  in  some  countries  the 

issue  of  certificates  of  nationality  and  travel  certificates; 
(3)  in  cases  of  extradition,  of  citizens  of^Ms  own.  state  from 
the  foreign  state,  the  presentation  of  the  requisition  for 
extradition;  and  in  cases  of  extradition  of  citizens  of  the 
state  to  which  he  is  accredited  from  his  own  state,  usually 
the  certification  that  the  papers  submitted  as  evidence  are 
"properly  and  legally  authenticated."  ^  In  some  states  dip- 
lomats are  authorized  to  perform  notarial  acts.^  (4)  The 
exercise  of  a  reasonable  courtesy  in  the  treatment  of  his 
fellow-citizens. 

All  these  functions  vary  with  local  law.  The  practice  is 
not  uniform,  as  is  evidenced  in  the  inconsistencies  in  regard 
to  regulations  as  to  marriage  by  the  diplomatic  agent.^ 

(d)  In  making  reports  the  diplomat  is  supposed  to  keep 
Reports  to  ^^^  °^^  government  informed  upon  (1)  the  views 
home  and  policy  of  the  state  to  which  he  is  accredited, 
government.  ^^^  ^2)  such  facts  as  to  events,  commerce,  dis- 
coveries, etc.,  as  may  seem  desirable.  These  reports  may  be 
regular  at  specified  periods,  or  special. 

>  22  U.  S.  Sts.  at  Large,  216,  §  5. 

'U.  S.  Rev.  Sts.,  §  1750;  1  Gould  and  Tucker.  446;  2  ibid.,  158. 

» Hall,  n.  1,  p.  185. 


178  INTERNATIONAL  LAW 

79.     Termination  of  Mission 

The  mission  of  a  diplomatic  representative  may  terminate 
in  various  ways. 

(a)  A  mission  may  terminate  through  the  death  of  the 
diplomat.  In  such  a  case  there  may  properly  be  a  funeral 
befitting  the  rank  of  the  diplomat.  The  prop- 
Through  death  gj.^    ^^^  papers  of  the  mission  are  inventoried 

of  agent.  j  r    r 

and  sealed  by  the  secretary,  or  in  case  of  the 
absence  of  secretaries  and  other  proper  persons,  by  the  diplo- 
mats of  one  or  more  friendly  powers.  The  inheritance  and 
private  property  of  the  diplomat,  of  course,  follow  the  law 
of  his  country,  and  the  property  of  the  deceased  is  exempt 
from  local  jurisdiction. 

(6)  The  mission  may  terminate  in  ordinary  course  of 
events,  by  (1)  expiration  of  the  period  for  which  the  letter 
Inordinary  °^  Credence  or  full  power  is  granted;  (2)  fulfill- 
course  of  ment  of  the  purpose  of  the  mission,  if  a  special 

events.  mission;  (3)  change  of  grade  of  diplomat;  (4) 

the  death  or  dethronement  of  the  sovereign  to  whom  the 
diplomatic  agent  is  accredited,  except  in  cases  of  republican 
forms  of  government.  In  the  above  case  new  letters  of 
credence  are  usually  regarded  as  essential  to  the  continuance 
of  the  mission.  The  weight  of  opinion  seems  to  indicate  that 
the  mission  of  a  diplomat  is  terminated  by  a  change  in  the 
government  of  his  home  country  through  revolution,  and 
that  new  letters  of  credence  are  necessary  for  the  continuance 
of  his  mission. 

(c)  A  mission  may  be  interrupted  or  broken  off  through 

strained  relations  between  the  two  states  or  between  the 

diplomatic  agent  and  the  receiving  state.     (1) 

Under  strained  ^  declaration  of  War  immediately  terminates 

relations.  "^ 

diplomatic  relations.  (2)  Diplomatic  relations 
may  be  broken  off  by  the  personal  departure  of  the  agent. 


DIPLOMACY  AND   INTERNATIONAL   RELATIONS        179 

which  departure  is  for  a  stated  cause,  such  as  the  existence 
of  conditions  making  the  fulfillment  of  his  mission  impossible, 
or  the  violation  of  the  principles  of  international  law.  (3) 
Diplomatic  relations  may  be  temporarily  suspended,  owing 
to  friction  between  the  states,  as  in  the  case  of  the  suspension 
of  diplomatic  relations  between  Great  Britain  and  Venezuela 
from  1887  to  1897,  owing  to  dispute  upon  questions  of  bound- 
ary. In  1891  Italy  recalled  her  minister  from  the  United 
States  on  account  of  alleged  tardiness  of  the  United  States 
authorities  in  making  reparation  for  the  lynching  of  Italians 
in  New  Orleans  on  March  14,  1891. ^  (4)  A  diplomatic  agent 
is  sometimes  dismissed  either  on  grounds  personal  to  the 
diplomat,  or  on  grounds  involving  the  relations  of  the  two 
states.  When,  in  1888,  the  demand  for  the  recall  of  Lord 
Sackville,  the  British  minister  at  Washington,  was  not 
promptly  complied  with.  Lord  Sackville  was  dismissed  and 
his  passport  sent  to  him.  Lord  Sackville  had,  in  response  to 
a  letter  purporting  to  be  from  an  ex-British  subject,  sent  a 
reply  which  related  to  the  impending  presidential  election. 
His  recall  was  demanded  by  telegraph,  October  27.  The 
British  government  declined  to  grant  it  without  time  for 
investigation,  and  his  passport  was  sent  him  on  October  30. 
In  1871,  "The  conduct  of  Mr.  Catacazy,  the  Russian  minister 
at  Washington,  having  been  for  some  time  past  such  as 
materially  to  impair  his  usefulness  to  his  own  Government, 
and  to  render  intercourse  with  him  for  either  business  or  social 
purposes  highly  disagreeable,"  it  was  the  expressed  opinion 
of  the  President  that  "  the  interests  of  both  countries  would 
be  promoted  ...  if  the  head  of  the  Russian  legation  here 
was  to  be  changed."  The  President,  however,  agreed  to 
tolerate  the  minister  till  after  the  contemplated  visit  of  the 
grand  duke.  The  communication  also  stated,  "  That  minister 
will  then  be  dismissed  if  not  recalled."  ^ 

1  For.  Relations  U.  S.  1891,  p.  658  ff.  ^  4  Moore,  §  639. 


180  INTERNATIONAL   LAW 

(d)  The  ceremonial  of  departure  is  similar  to  that  of  recep- 
tion.    (1)  The  diplomat  seeks  an  interview  according  to  the 
method  outlined  in  the  ceremonial  of  reception, 
Ceremonial  of     -^^  ^^^^^  ^^  present  his  letter  of  recall.     (2)  In 

departure.  '■  ^   ^ 

case  of  remoteness  from  the  seat  of  government 
the  agent  may,  if  necessary,  take  leave  of  the  sovereign  by 
letter,  forwarding  to  the  sovereign  his  letter  of  recall.  (3)  It 
very  often  happens  that  a  diplomatic  agent  presents  his  suc- 
cessor at  the  time  of  his  own  departure.  (4)  In  case  of  change 
of  title  the  diplomat  follows  the  ceremonial  of  departure  in 
one  capacity  with  that  of  arrival  in  his  new  capacity.  (5)  It 
is  understood  that  the  agent,  after  the  formal  close  of  his 
mission,  will  depart  with  convenient  speed,  and  until  the 
expiration  of  such  period  he  enjoys  diplomatic  immunities. 

80.     Immunities  and  Privileges 

Few  subjects  involved  in  international  relations  have  been 
more  extensively  discussed  than  the  privileges  and  immuni- 
ties of  diplomatic  agents.  Many  of  the  earliest  treatises  on 
international  affairs  were  devoted  to  such  questions.  In 
order  that  any  business  between  states  might  be  carried  on, 
some  principles  upon  which  the  diplomatic  agent  could  base 
his  action  were  necessary.  The  treatment  of  the  agent  -eould 
not  be  left  to  chance  or  to  the  feeling  of  the  authorities  of 
the  receiving  state.  Gradually  fixed  usages  were  recognized. 
These  immunities  and  privileges  may  be  considered  under 
two  divisions:  personal  inviolability,  and  exemption  from 
local  jurisdiction,  otherwise  known  as  exterritoriality. 

(a)  The  person  of  the  agent  was  by  ancient  law  inviolable. 
According  to  the  dictum  of  the  Roman  Law,  sancti  hahenlur 

Inviolability  of  ^^(l^^^^-  In  accord  v^^ith  this  principle  the  phys- 
the  person  of  ical  and  moral  person  is  inviolable.  Any  offense 
the  agent.  toward  the  person  of  the  ambassador  is  in 
effect   an   offense   to   the   state   which   he   represents,    and 


DIPLOMACY   AND   INTERNATIONAL    RELATIONS       ISl 

to  the  law  of  nations.  The  receiving  state  is  bound  to  ex- 
tend to  the  diplomatic  agent  such  protection  as  will  preserve 
his  inviolability.  This  may  make  necessary  the  use  of  force 
to  preserve  to  the  diplomatic  agent  his  privileges.  The  idea 
of  inviolability,  as  Calvo  says,  is  absolute  and  unlimited,  and 

based,  not  on  simple  convenience,  but  upon 
^rivUe°e*^^^       necessity.     Without  it  diplomatic  agents  could 

not  perform  their  functions  for  they  would  be 
dependent  upon  the  sovereign  to  whom  they  might  be  ac- 
credited.i  In  many  states  laws  have  been  enacted  during 
the  last  half  of  the  nineteenth  century  fixing  severe  penalties 
for  acts  which  affect  the  diplomatic  agent  unfavorably  in 
the  performance  of  his  functions  or  reflect  upon  his  dignity .2 
The  privilege  of  inviolability  extends^lrr  alike  to  agents 
of  all  classes;  j(2)  to  the  suite,  official  and  non-ofRcial;  (3)  to 

such  things  as  are  convenient  for  the  perform- 
Extent  of  the     ^^^^  ^^  ^Yye  agent's  functions;  (4)  during  the 

entire  time  of  his  official  sojourn,  i.e.,  from  the 
time  of  the  announcement  of  his  official  character  to  the  ex- 
piration of  a  reasonable  time  for  departure  after  the  com- 
pletion of  his  mission.  This  also  holds  even  when  the 
mission  is  terminated  by  the  outbreak  of  war  between  the 
state  from  which  the  agent  comes  and  the  state  to  which 
he  is  accredited.  (5)  By  courtesy  the  diplomatic  agent  is 
usually  accorded  similar  privileges  when  passing  through  a 
third  state  in  going  to  or  returning  from  his  post. 

A  diplomatic  agent  may  place  himself  under  the  law,  says 
Despagnet,  so  far  as  attacks  upon  him  are  concerned:  (1) 

when  he  voluntarily  exposes  himself  to  danger, 
Limits  of  -j^  ^  j.Jq^  ^^gj   p-^jj  ^^j..  ^2)  when  in  his  private 

immunity.  ' 

capacity  he  docs  that  which  is  liable  to 
criticism,  e.g.,  as  a  writer  or  artist,  provided  the  criti- 
cism should  not  degenerate  into  an  attack  upon  his  public 

>  "  Droit  Int.,"  §  1481  ff.  =*  Lehr,  "  Manuel,"  §§  988-998. 


182  INTERNATIONAL   LAW 

character;  (3)  when  the  attacks  upon  him  are  in  legitimate 
personal  self-defense;  (4)  when,  by  his  actions,  he  provokes 
on  the  part  of  the  local  government  precautionary  measures 
against  himself,  e.g.  if  he  should  plot  against  the  surety  of 
the  state  to  which  he  is  accredited.^  Only  in  the  case  of 
extreme  necessity,  however,  should  any  force  be  used.  It  is 
better  to  ask  for  the  recall  of  the  agent.  In  case  of  refusal 
or  in  case  of  urgent  necessity  the  agent  may  be  expelled. 

(6)  Exemption  from  local  jurisdiction  of  the  state  to  which 
a  diplomatic  agent  is  sent,  or  exterritoriality  in  a  limited 
sense,  flows  naturally  from  the  admitted  right 
!.1°^'eMptn.  °f  inviolability.  The  term  "exterritoriality"  is 
a  convenient  one  for  describing  the  condition 
of  immunity  which  diplomatic  agents  enjoy  in  a  foreign 
state,  but  it  should  be  observed  that  the  custom  of  conceding 
these  immunities  has  given  rise  to  the  "  legal  fiction  of  exterri- 
toriality," rather  than  that  these  immunities  are  based  on 
a  right  of  exterritoriality.  The  practice  of  granting  immuni- 
ties was  common  long  before  the  idea  of  exterritoriality  arose.^ 
The  exemptions  give  to  diplomatic  agents  large  privileges. 

(1)  The  diplomatic  agent  is  exempt  from  the  criminal 
jurisdiction  of  the  state  to  which  he  is  accredited.  In  case 
Agent  exempt  °^  violation  of  law  the  receiving  state  has  to 
from  criminal  dccidc  whether  the  offense  is  serious  enough  to 
juris  ic  ion.  warrant  a  demand  for  the  recall  of  the  agent, 
or  whether  it  should  be  passed  without  notice.  In  extr'eme 
cases  a  state  might  order  the  agent  to  leave  the  country,  or 
in  case  of  immediate  danger  might  place  the  agent  under 
reasonable  restraint.  Hall  considers  these  "as  acts  done  in 
pursuance  of  a  right  of  exercising  jurisdiction  upon  sufficient 
emergency,  which  has  not  been  abandoned  in  conceding 
immunities  to  diplomatic  agents."  ^ 

*  Dospagnot,  "Droit  intomational  public,"  2d  ed.,  §  235;  Heffter,  5  204. 
'  Grotius,  "  De  Jure  Belli,"  II,  18.  3  Hall,  p.  173. 


DIPLOMACY  AND   INTERNATIONAL   RELATIONS       183 

(2)  The  diplomatic  agent  is  exempt  from  civil  jurisdiction 
of  the  state  to  which  he  is  sent,  and  cannot  be  sued,  arrested, 
Agent  exempt  °^  punished  by  the  law  of  that  state,  i  This 
from  civu  rule  is  sometimes  held  to  apply  only  to  such 

jurisdiction.  proceedings  as  would  affect  the  diplomat  in  his 
official  character;  but  unless  the  diplomat  voluntarily  assume 
another  character,  he  cannot  be  so  proceeded  against.  If 
he  become  a  partner  in  a  firm,  engage  in  business,  buy  stocks, 
or  assume  financial  responsibilities,  it  is  held  in  theory  by 
some  authorities  that  the  diplomatic  agent  may  be  proceeded 
against  in  that  capacity.  The  diplomatic  agent  of  the  United 
States  is  distinctly  instructed  that  "  real  or  personal  property, 
aside  from  that  which  pertains  to  him  as  a  minister,  ...  is 
subject  to  the  local  laws."  ^  The  practice  is,  however,  to 
extend  to  the  diplomat  in  his  personal  capacity  the  fullest 
possible  immunity,  and  in  case  of  need  to  resort  to  his  home 
courts,  or  to  diplomatic  methods  by  appeal  to  the  home 
government,  for  the  adjustment  of  any  difficulties  that  may 
involve  its  representative  in  foreign  court  proceedings.  The 
real  property  of  the  diplomatic  agent  is,  of  course,  liable  to 
local  police  and  sanitary  regulations.  In  cases  where  a  diplo- 
matic agent  consents  to  submit  himself  to  foreign  jurisdiction, 
the  procedure  and  the  judgment,  if  against  him,  cannot  in- 
volve him  in  such  manner  as  seriously  to  interfere  with  the 
performance  of  his  functions.  He  cannot  be  compelled  to 
appear  as  witness  in  a  case  of  which  he  has  knowledge;  how- 
ever, it  is  customary  in  the  interests  of  justice  for  the  diplo- 
matic agent  to  make  a  deposition  before  the  secretary  of  the 
legation  or  some  proper  officer.  By  the  Constitution  of  the 
United  States,  in  criminal  prosecutions  the  accused  has  a 
right  to  have  the  evidence  taken  orally  in  his  presence.  The 
refusal  of  M.  Dubois,  the  Dutch  minister  to  the  United  States 

1  U.  S.  Rev.  Sts.,  §§  4063,  4064;  Wheat.  D.,  308-310. 
*  Instructions  to  Diplomatic  OflBcers,  1897,  §  47. 


184  INTERNATIONAL  LAW 

in  1856,  to  give  oral  testimony,  resulted  in  his  recall. ^  The 
Venezuelan  minister,  however,  testified  in  open  court  as  a 
courtesy  to  the  United  States  government  in  the  trial  of  the 
assassin  of  President  Garfield.^  The  United  States  at  the 
present  time  maintains  that  ''a  diplomatic  representative 
cannot  be  compelled  to  testify,  in  the  country  of  his  sojourn, 
before  any  tribunal  whatsoever."  This  may  be  considered 
the  generally  accepted  principle,  though  the  interests  of  gen- 
eral justice  and  international  courtesy  frequently  lead  to 
voluntary  waiving  of  the  rule  with  the  consent  of  the  accred- 
iting state. 

(3)  The  official  and  non-official  family  enjoy  the  immuni- 
ties of  their  chief  as  necessary  for  the  convenient  performance 
Immunities  of  ^f  his  mission.  Questions  in  regard  to  the 
family  and  immunities  of  the  non-official  suite  have  some- 
■"^*®*  times  arisen.  To  avoid  this  it  is  customary  for 
the  diplomat  to  furnish  the  receiving  state  with  a  list  of  his 
family.  Great  Britain  does  not  admit  the  full  immunity  of 
domestic  servants.  When  Mr.  Gallatin  was  United  States 
minister  to  Great  Britain,  his  coachman,who  had  committed 
an  assault  beyond  the  hotel  of  the  minister,  was  held  liable  to 
the  local  jurisdiction.  As  a  diplomatic  agent  can  voluntarily 
turn  over  an  offender  to  the  local  authorities,  and  as  he  would 
naturally  desire  the  observance  of  local  law,  there  would  be 
little  danger  of  friction  with  local  authorities  anywhere,  pro- 
vided a  just  cause  could  be  shown. 

Couriers  and  bearers  of  dispatches  are  entitled  to  immuni- 
ties so  far  as  is  necessary  for  the  free  performance  of  the 
specific  function. 

(4)  The  house  and  all  grounds  and  buildings  within  the 
limits  of  the  diplomatic  residence  are  regarded  as  exempt 
from  local  jurisdiction.  Great  Britain  claimed  the  right  of 
entry  to  arrest  Mr.  Gallatin's  coachman  above  mentioned, 

»  4  Moore,  §  662.  » Ibid. 


DIPLOMACY  AND   INTERNATIONAL  RELATIONS       185 

though  admitting  that  such  entrance  should  be  made  at 
a  time  to  suit  the  convenience  of  the  minister  if  he  did  not 
„^    ^.  ,       .     care  to  hand  him  over  directly.     This  immu- 

The  diplomatic 

residence  ex-  nity  extends  also  to  carriages  and  other  neces- 
empt  from  local  gary  appurtenances  of  the  mission. 

Children  born  to  the  official  family  in  the 
house  of  the  diplomatic  agent  are  considered  as  born  in  the 
state  by  which  the  agent  is  accredited. 

(5)  The  right  of  asylum  in  the  house  of  the  ambassador 
is  now  generally  denied.  In  1726  the  celebrated  case  of  the 
Right  of  Duke  of  Ripperda,  charged  with  treason,  gave 

asylum  gen-  rise  to  the  decision  by  the  Council  of  Castile 
eraiiy  denied.  ^^iSit  the  duke  could  be  taken  from  the  English 
legation  by  force  if  necessary,  because  the  legation,  which 
had  been  established  to  promote  good  relations  between  the 
states,  would  otherwise  be  used  for  overthrowing  the  state 
in  which  it  had  been  established. ^  It  may  be  regarded  as  a 
rule  that,  in  Europe  and  in  the  United  States,  the  house  of 
a  diplomatic  agent  affords  only  temporary  protection  for  a 
criminal,  whether  political  or  otherwise,  and  that  on  demand 
of  the  proper  authority  the  criminal  must  be  surrendered. 
Refusal  is  a  just  ground  for  demand  for  recall  of  the  diplomatic 
agent.  The  United  States  instructs  its  agents  that  "The 
privilege  of  immunity  from  local  jurisdiction  does  not  embrace 
the  right  of  asylum  for  persons  outside  of  a  representative's 
dii)lomatic  or  personal  household."  ^  This  right  is,  however, 
recognized  in  practice,  both  by  the  United  States  and  Euro- 
pean nations,  so  far  as  pertains  to  the  houses  of  the  diplomats 
in  South  American  states.  The  United  States,  in  1870,  tried 
without  avail  to  induce  the  European  nations  to  agree  to  the 
discontinuance  of  the  practice.  In  1891,  in  Chile,  Minister 
Egan,  of  the  United  States,  afforded  refuge  in  the  legation 

»  De  Martens,  "Causes  Cel.,"  I,  174. 

*  Instructions  to  Diplomatic  Officers,  1897,  §  50. 


186  INTERNATIONAL  LAW 

to  a  large  number  of  the  political  followers  of  Balmaceda. 
Chile  demanded  his  recall,  but  the  United  States  maintained 
that  there  must  be  sufficient  grounds  for  such  action.  In 
Eastern  countries  it  has  been  the  practice  to  afford  asylum 
in  legations  in  times  of  political  disturbance  and  to  political 
offenders.  In  1895  the  British  ambassador  at  Constantinople 
gave  asylum  to  the  deposed  grand  vizier  at  Constantinople. 
It  may  be  said,  however,  that  the  tendency  is  to  limit  the 
granting  of  asylum  to  the  fullest  possible  extent,^  and  finally 
to  abolish  the  practice  altogether,  as  has  been  the  case  with 
the  ancient  extension  of  this  privilege  to  the  neighborhood 
of  the  legation  under  the  name  of  jus  quarteriorum? 

(6)  In  general,  the  diplomatic  agent  is  exempt  from  per- 
sonal taxes  and  from  taxes  upon  his  personal  goods.     The 

property  owned  by  and  devoted  to  the  use  of 
axation  ^^^q  mission  is  usually  exempt  from  taxation. 

exemptions.  *'  '^ 

In  this  respect  the  principle  of  reciprocity  is 
followed  among  some  states.  The  taxes  for  betterments, 
such  as  paving,  sewerage,  etc.,  are  regarded  as  proper  charges 
upon  the  mission.  A  state  has  a  right  to  make  such  regula- 
tions as  it  deems  necessary  to  prevent  the  abuse  of  this  im- 
munity from  taxation.  It  is  also  customary  for  a  third  state 
to  grant  to  a  diplomat  passing  through  its  territory  immu- 
nity from  duties.  Diplomatic  agents  are  also  exempt  from 
income,  military,  window,  and  similar  taxes. 

(7)  It  is  hardly  necessary  now  to  mention  the  fact  -that 
the  diplomatic  agent  is  entitled  to  freedom  of  religious  worship 
Freedom  of  within  the  missiou,  provided  there  be  no  attempt 
religious  by  bell ,  symbol,  or  otherwise  to  attract  the  atten- 
wors  ip.  ^j^j^  ^|.  ^^^  passer-by  to  the  observance.  This  priv- 
ilege was  formerly  of  importance,  but  now  is  never  questioned. 

'  Hall,  p.  182. 

'See  the  "Ripht  of  Asylum  in  the  Legations  of  the  United  States  in 
Central  and  South  America,"  by  Barry  Gilbert,  in  Harvard  Law  Review 
for  June,  1901,  p.  118. 


DIPLOMACY  AND  INTERNATIONAL  RELATIONS        187 

/81.     Diplomatic  Practice  of  the  United  States^ 

Some  of  the  minor  points  of  procedure  and  functions  may 
'^'^be  seen  by  the  study  of  the  customs  and  rules  of  any  large 
state,  as  in  the  United  States. 

f(a)  Official  communications  involving  international  rela- 
tions and  general  international  negotiations  are  within  the 
exclusive  province  of  the  Department  of  State,  at  the  head 
of  which  stands  the  Secretary  of  State.  In  other  states  this 
department  is  commonly  called  the  Department  of  Foreign 
Affairs,  and  its  chief  is  the  Minister  or  Secretary  for  Foreign 
Affairs,  and  was  so  designated  in  the  United  States  from  1781 
to  1789.  The  Department  of  State  of  the  United  States, 
however,  performs  many  functions  not  strictly  within  a 
Department  of  Foreign  Affairs,  as  an  enumeration  of  the 
Bureaus  will  show. 

(1)  Bureau  of  Appointments. 

(2)  Diplomatic  Bureau. 

(3)  Consular  Bureau. 

(4)  Bureau  of  Indexes  and  Archives. 

(5)  Bureau  of  Accounts. 

(6)  Bureau  of  Rolls  and  Library,  which,  besides  other 
duties,  has  charge  of  the  publication  of  the  laws,  treaties, 
proclamations,  and  executive  orders. 

(7)  Bureau  of  Citizenship. 

(8)  Bureau  of  Trade  Relations. 

(9)  Division  of  Far  Eastern  Affairs. 

(10)  Division  of  Latin- American  Affairs. 

(6)  The  Constitution  provides  that,  "  In  all  cases  affecting 
I  ambassadors,  other  public  ministers,  and  consuls,"  the  Su- 
preme Court  has  original  jurisdiction.^ 

(c)  A  diplomatic  agent  cannot,  without  consent  of  Con- 

*  Concise    bibliography,    Hart,    "  Foundations    of    American    Foreign 
Policy,"  pp.  241-293. 

*  U.  S.  Constitution,  Art.  Ill,  §  2,  2. 


188  INTERNATIONAL  LAW 

gress,  "accept  of  any  present,  emolument,  office,  or  title  of 
any  kind  whatever  from  any  king,  prince,  or  foreign  state."  i 
This  provision  does  not,  however,  prevent  the  rendering  of 
a  friendly  service  to  a  foreign  power,  and  it  may  be  proper 
for  him,  having  first  obtained  permission  from  the  Depart- 
ment of  State,  to  accede  to  the  request  to  discharge  tempo- 
rarily the  duties  of  a  diplomatic  agent  of  any  other  state.2 

(d)  In  case  of  revolution  a  diplomatic  agent  may  extend 
protection  to  the  subjects  of  other  friendly  powers  left  for 
the  time  without  a  representative.^  In  neither  this  nor  in 
the  preceding  case  does  the  United  States  become  responsible 
for  the  acts  of  its  diplomatic  representative  in  so  far  as  he 
is  acting  as  agent  of  the  other  state  or  states. 
'  (e)  "It  is  forbidden  to  diplomatic  officers  to  participate 
in  any  manner  in  the  political  concerns  of  the  country  of  their 
residence;  and  they  are  directed  especially  to  refrain  from 
public  expressions  of  opinion  upon  local  political  or  other 
questions  arising  within  their  jurisdiction.  It  is  deemed 
advisable  to  extend  similar  prohibition  against  public  ad- 
dresses, unless  upon  exceptional  festal  occasions,  in  the 
country  of  official  residence.  Even  upon  such  occasions  any 
reference  to  political  issues,  pending  in  the  United  States  or 
elsewhere,  should  be  carefully  avoided."  *  A  diplomatic 
agent  is  forbidden  to  recommend  any  person  for  office  under 
the  government  to  which  he  is  accredited.^  The  diplomatic 
agent  should  not  become  the  agent  to  prosecute  private  claims 
of  citizens.*^  The  diplomatic  agent  should  not  retain  any 
copy  of  the  archives,  nor  allow  the  publication  of  any  official 
document,  without  authorization  of  the  Department  of  State. 
The  Department  in  general  disapproves  of  residence  of  the 
agent  elsewhere  than  at  the  capital  of  the  receiving  state. 

» U.  S.  Constitution,  Art.  I,  §  9,  8. 

2  4  Moore,  §  653.  »  Jbid. 

» Instructions  to  Diplomatic  Officers,  U.  S.,  1897,  §§  68,  69. 

» U.  S.  Rev.  Sts.,  §  1751.  •  4  Moore,  §  654. 


DIPLOMACY  AND   INTERNATIONAL  RELATIONS        189 

(/)  Joint  action  with  the  diplomatic  agents  of  other  powers 
at  a  foreign  court  is  deprecated,  although  conferences  result- 
ing in  a  common  understanding  in  cases  of  emergency  are 
considered  desirable. ^ 

r  (g)  It  is  permitted  that  the  diplomatic  agent  of  the  United 
'  States  wear  the  uniform  and  bear  the  title  of  the  rank  attained 
in  the  volunteer  service  of  the  Army  of  the  United  States 
during  the  rebellion.^  It  is  prohibited  by  a  later  statute  to 
wear  "  any  uniform  or  official  costume  not  previously  author- 
ized by  Congress."  ^  This  has  been  interpreted  as  applying 
to  dress  denoting  rank,  but  not  to  the  prescribed  court  dress 
of  certain  capitals;^  and  "diplomatic  officers  are  permitted 
to  wear  upon  occasions  of  ceremony  the  dress  which  local 
usage  prescribes  as  appropriate  to  the  hour  and  place."  ^ 
'  -  (h)  The  United  States  has  never  been  liberal  in  compensa- 
ting diplomatic  agents  for  their  services.  In  1784  the  salary 
of  the  highest  grade  was  fixed  at  nine  thousand  dollars,  and 
it  has  only  been  doubled  at  the  end  of  the  nineteenth  century. 
Other  states  of  equal  dignity  provide  far  more  Hberally  for 
their  representatives. 

The  whole  matter  of  diplomatic  agents  has  been  the  subject 
of  numerous  statutes.^ 

82.     Consuls 

(a)  Historically    the    office    of    consul    preceded    that    of 
ambassador.    The  merchants  of  different  states  had  dealings 
with  one  another  long  before  the  states,  as  such, 

History.  .  . 

entered  into  negotiations.  The  Egyptians,  ap- 
parently as  early  as  the  fourteenth  century  b.c,  intmsted 
the  trial  of  certain  maritime  cases  to  a  designated  priest. 

1  4  Moore,  §  652.  ^  xj.  s.  Rev.  Sts.,  §  1226. 

3  Ibid.,  §  1688.  *  Schuyler,  "  Amer.  Dip.,"  144. 

» Instructions  to  Diplomatic  Officers,  IJ.  S.,  §  67. 

6  U.  S.  Rev.  Sts.,  §§  1674-1752;  1  Gould  and  Tucker,  439-447;  2  ibid., 
155-158. 


190  INTERNATIONAL   LAW 

The  Mediterranean  merchants  appealed  to  the  judicium  mer- 
catorium  et  maritimum  in  the  sixth  century  b.c.  The  Greek 
proxenos  performed  some  consular  functions.  Rome  later 
had  similar  public  servants.  The  consular  system,  however, 
did  not  develop  during  the  long  period  of  decay  of  the  Roman 
Empire.  In  the  days  of  the  Crusades,  the  merchants  settled 
in  the  coast  cities  of  the  Mediterranean.  Quarters  of  the 
cities  practically  came  under  the  jurisdiction  of  the  foreign 
occupants.  The  consuls,  probably  at  first  chosen  by  the 
merchants,  exercised  this  jurisdiction,  under  which  the  law 
of  the  state  of  the  origin  of  the  merchants  was  regarded  as 
binding.  Their  functions  were  somewhat  similar  to  those 
exercised  in  some  Eastern  states  at  the  present  time.  As 
soon  as  conditions  became  more  settled,  the  states  gradually 
assumed  control  of  these  consular  offices.  The  laws  of  Oleron, 
Amalfi  Wisby,  the  Consolato  del  Mare,  and  the  early  Lex 
Rhodia  show  that  many  of  the  consular  functions  were 
recognized  in  the  Middle  Ages,  and  the  institution  of  consuls 
seems  to  have  been  quite  well  established  by  the  year  1200. 
The  Hanseatic  League  in  the  fourteenth  century  had  magis- 
trates in  many  cities  entitled  aldermen,  who  were  performing 
functions  similar  to  those  of  the  consuls  of  the  Mediterranean. ^ 
England  began  to  send  consuls  in  the  fifteenth  century;  the 
system  rapidly  spread,  and  the  powers  and  functions  of  con- 
suls were  wide.  From  this  time,  with  the  growth  of  the 
practice  of  sending  resident  ambassadors,  the  extent  of  the 
consular  duties  was  gradually  lessened.  The  diplomatic 
functions  formerly  in  the  charge  of  the  consuls  were  intrusted 
to  the  ambassadors,  and  other  functions  of  the  consuls  were 
reduced  by  making  them  the  representatives  of  the  business 
interests  of  the  subjects  of  the  state  in  whose  service  they 
were,  rather  than  of  the  interests  of  the  state  as  such  .2    From 

'  Nys,  "Les  origines  du  droit  international,"  "Le  Commerce,"  p.  286. 
'Lawrence,  "Commcntaire  sur  Wheaton,"  IV,  p.  6. 


DIPLOMACY  AND   INTERNATIONAL   RELATIONS        191 

the  middle  of  the  seventeenth  century,  when  the  responsi- 
bility of  states  to  each  other  became  more  fully  recognized, 
and  government  became  more  settled,  the  exterritorial  juris- 
diction of  consuls  was  no  longer  necessary.  The  growth  of 
conm[ierce  among  the  nations  has  increased  the  duties  of  the 
consul.  The  improved  means  of  communication,  telegraphic 
and  other,  has  relieved  both  consuls  and  ambassadors  of  the 
responsibility  of  deciding,  without  advice  from  the  home 
government,  many  questions  of  serious  nature. 

(h)  The  rank  of  consuls  is  a  matter  of  domestic  law,  and 
each  state  may  determine  for  its  own  officers  the  grade  and 
Rank  of  consuls  honors  attaching  thereto  in  the  way  of  salutes, 
a  matter  of  precedence  among  its  domestic  officials,  etc. 
domestic  law.     'pj^gj.g  js  jjq  international  agreement  in  regard 

to  consuls  similar  to  that  of  1815-1818  in  regard  to  diplomatic 
agents. 

The  United  States  differentiates  the  consular  service  more 
fully  than  most  states,  having  the  following:  consuls-general, 
vice-consuls-general,  deputy  consuls-general,  consuls,  vice- 
consuls,  deputy  consuls,  commercial  agents,  vice-commercial 
agents,  consular  agents,  consular  clerks,  interpreters,  marshals, 
and  clerks.i  The  term  "consular  officer,"  however,  includes 
only  consuls-general,  consuls,  commercial  agents,  deputy  con- 
suls, vice-consuls,  vice-commercial  agents,  and  consular 
agents.2  The  full  officers  are  consuls-general,  consuls,  and 
commercial  agents.  The  vice-consular  officers  are  "substi- 
tute consular  officers"  and  the  deputy  consuls-general,  deputy 
consuls,  and  consular  agents  are  "subordinate  consular  of- 
ficers." 3 

Consuls-general  ordinarily  have  a  supervisory  jurisdiction 
of  the  consuls  within  the  neighborhood  of  their  consulate, 
though  sometimes   they  have   no   supervisory   jurisdiction. 

'  Consular  Regulations,  1896,  1. 

2  U,  S,  Rev.  Sts.,  §  1674.  ^  /^j^;^ 


192  INTERNATIONAL  LAW 

This  is  often  exercised  by  the  diplomatic  agent  accredited  to 
the  same  state. 

Most  states  have  consuls-general,  consuls,  vice-consuls, 
consular  agents,  sometimes  also  consular  students. 

(c)  The  nomination  of  consuls  is  an  attribute  of  a  sovereign 
state.  They  may  be  chosen  either  from  among  its  own  citi- 
„     .    ,.        ^  zens  or  from  those  of  the  foreign  state.     Consuls 

Nomination  and  "^    '-'  ^  o 

reception  of  choscn  from  the  citizens  of  the  state  to  which 
consuls.  ^i^gy  g^j.g  accredited  exercise  only  in  part  the  full 

consular  functions,  the  limit  of  the  functions  being  determined 
by  the  laws  of  the  accrediting  state  and  by  the  laws  of  the 
receiving  state.  Some  states  refuse  to  receive  their  own 
citizens  as  consuls;  others  do  not  accredit  foreigners  as  con- 
suls. 

The  commission  or  patent  by  which  a  consul-general  or 
consul  is  always  appointed  is  transmitted  to  the  diplomatic 
representative  of  the  appointing  state  in  the  state  to  which 
the  consul  is  sent,  with  the  request  that  he  apply  to  the 
proper  authority  for  an  exequatur,  by  which  the  consul  is 
officially  recognized  and  guaranteed  such  prerogatives  and 
immunities  as  are  attached  to  his  office.  The  vice-consul  is 
usually  appointed  by  patent,  though  he  may  be  nominated 
by  his  superior,  and  is  recognized  by  granting  of  an  exequatur. 
The  exequatur  may  be  revoked  for  serious  cause,  though  the 
more  usual  way  is  to  ask  the  recall  of  a  consul  who  is  not 
satisfactory  to  a  state.  The  exequatur  may  be  refused  for 
cause.  It  is  usually  issued  by  the  head  of  the  state.  If 
the  form  of  government  in  the  receiving  state  or  in  the 
accrediting  state  changes,  it  is  customary  to  request  a  new 
exequatur. 

Note.  The  consular  agents,  while  appointed  and  confirmed 
as  are  the  higher  consular  officers,  do  not  in  the  practice  of  the 
United  States  receive  an  exequatur. 


DIPLOMACY  AND   INTERNATIONAL  RELATIONS       193 

(form  of) 

FULL  PRESIDENTIAL  EXEQUATUR 

President  of  the  United  Sta>'=^  of  America. 

To  all  to  whom  it  may  concern : 

Satisfactory  evidence  having  been  exhibited  to  me 

that 

has  been  appointed 

I  do  hereby  recognize  him  as  such,  and  declare  him  free  to  exercise  and 
enjoy  such  functions,  powers,  and  privileges  as  are  allowed  to 


In  Testimony  whereof,  I  have  caused  these  Letters 
to  be  made  Patent,  and  the  Seal  of  the  United  States 
[seal  to  be  hereimto  affixed. 

OF  THE  Given  imder  my  hand  at  the  City  of  Washington 

UNITED  the day  of ,  a.d.  19 .... , 

states]             and   of  the   Independence   of   the   United   States   of 
America,  the 


By  the  President, 


Secretary/  of  State. 

(d)  The  consul,  as  the  officer  representing  particularly  the 
commercial  and  business  interests  of  the  state  from  which 
he  comes,  and  in  a  minor  degree  the  other  indi- 
o/the  cons^^'°°^  vidual  interests,  has  a  great  variety  of  functions. 
His  functions  are  in  general  such  as  affect  only 
indirectly  the  state  in  which  he  resides.  He  is  not,  like  the 
diplomatic  agent,  directly  concerned  with  affairs  of  state;  he 
has  no  representative  character,  though  in  efTect  he  is  often 
the  local  representative  of  the  diplomatic  agent  accredited 
to  the  state. 

The  functions  of  a  consul  are  largely  matters  determined 
by  custom,  treaty  stipulation,  and  by  special  provisions  of 
his   exequatur.     Within   these   limits   domestic   law   of   the 


194  INTERNATIONAL  LAW 

accrediting  state  determines  the  consul's  functions.  (1)  In 
general  the  consul  has  many  duties  in  connection  with  the 
commercial  interests  of  the  subjects  of  the  state  which  he 
serves.  These  duties  extend  both  to  maritime  and  land  com- 
merce. The  consul  is  to  care  that  the  provisions  of  commer- 
cial treaties  are  observed,  that  proper  invoices  of  goods  are 
submitted,  and  that  shipment  is  in  accord  with  the  regula- 
tions of  the  state  which  he  serves.  He  is  to  furnish  such 
reports  in  regard  to  commercial  and  economic  conditions  as 
are  required.  These  reports  often  involve  many  subjects 
only  indirectly  related  to  trade  and  commerce.  (2)  The  con- 
sul has  many  duties  relating  to  the  maritime  service  of  the 
state  which  accredits  him.  This  usually  includes  such  super- 
vision of  merchant  vessels  as  the  domestic  law  of  his  state 
may  grant  to  him,  together  with  that  accorded  by  custom. 
His  office  is  a  place  of  deposit  of  a  ship's  papers  while  the 
ship  remains  in  port.  When  necessary  he  may  supervise  the 
shipment,  wages,  relief,  transportation,  and  discharge  of  sea- 
men, the  reclaiming  of  deserters,  the  care  of  the  effects  of 
deceased  seamen,  in  some  states  the  adjudication  of  disputes 
between  masters,  officers,  and  crews,  and  if  necessary  he  may 
intervene  in  cases  of  mutiny  or  insubordination.  In  case  of 
wrecked  vessels  the  consul  is  usually  left  considerable  latitude 
in  his  action.  The  consul  may  also  authenticate  the  bill  of 
sale  of  a  foreign  vessel  to  the  subject  of  the  state  which 
accredits  him.  This  authentication  entitles  the  vessel  t<^  the 
protection  of  the  consul's  state.  The  consul  may  also  be 
intrusted  with  other  duties  by  treaties  and  custom  of  given 
states.  (3)  The  consul  represents  the  interests  of  the  citizens 
of  the  state  in  whose  service  he  is,  in  matters  of  authentication 
of  acts  under  seal,  in  administration  of  the  property  of  citizens 
within  his  district,  in  taking  charge  of  effects  of  deceased 
citizens,  in  arbitration  of  disputes  voluntarily  submitted  to 
him,  vise  of  passports,  and  minor  services.     (4)  The  consul 


DIPLOMACY  AND   INTERNATIONAL  RELATIONS        195 

furnishes  to  the  state  which  he  represents  information  upon 
agreat  variety  of  subjects  particularly  relating  to  commercial, 
economic,  and  political  affairs,  the  conditions  of  navigation, 
and  general  hydrographic  information.  Besides  this  he  is 
expected  to  keep  his  state  informed  of  the  events  of  interest 
transpiring  within  his  district.  ^ 

As  Hall  says:  "In  the  performance  of  these  and  similar 
duties  the  action  of  a  consul  is  evidently  not  international. 
He  is  an  officer  of  his  state  to  whom  are  entrusted  special 
functions  which  can  be  carried  out  in  a  foreign  country  with- 
out interfering  with  its  jurisdiction.  His  international  action 
does  not  extend  beyond  the  unofficial  employment  of  such 
influence  as  he  may  possess,  through  the  fact  of  his  being  an 
official  and  through  his  personal  character,  to  assist  compatri- 
ots who  may  be  in  need  of  his  help  with  the  authorities  of  the 
country.  If  he  considers  it  necessary  that  formal  representa- 
tions shall  be  made  to  its  government  as  to  treatment  experi- 
enced by  them  or  other  matters  concerning  them,  the  step 
ought  in  strictness  to  be  taken  through  the  resident  diplo- 
matic agent  of  his  state, — he  not  having  himself  a  recognized 
right  to  make  such  communications."  ^  In  late  years  there 
has  been  in  the  consular  conventions  between  different  states 
a  tendency  to  extend  to  consuls  the  right  of  complaint  to 
the  local  authorities  in  case  "  of  any  infraction  of  the  treaties 
or  conventions  existing  between  the  states,"  and  "if  the  com- 
plaint should  not  be  satisfactorily  redressed,  the  consular 
officer,  in  the  absence  of  the  diplomatic  agent  of  his  country, 
may  apply  directly  to  the  government  of  the  country  where 
he  resides."  ^ 

'  Stowell,  E.  C,  Le  Consul,  p.  15.  '  Hall,  p.  317. 

5  See  Treaties:  United  States  and  Colombia  (New  Granada),  1850; 
United  States  and  France,  1853;  United  States  and  Austria,  1870;  United 
States  and  Germany,  1871;  Austria  and  Portugal,  1873;  Germany  and 
Russia,  1874;  France  and  Russia,  1874;  United  States  and  Italy,  1878; 
Portugal  and  Belgium,  1880;  United  States  and  Roumania,  1881;  United 
States  and  Kongo  Free  State,  1891,  and  others. 


196  INTERNATIONAL  LAW 

(e)  In  some  of  the  Eastern  and  non-Christian  states  consuls 
have  special  powers  and  functions  in  addition  to  the  ordinary 
Special  powers  Powers  and  functions.  The  extent  of  the  pow- 
in  Eastern  ers  varies,  and  is  usually  determined  by  treaty, 
states.  With  the  advance  of  civilization  these  special 

functions  are  withdrawn,  as  by  the  Treaty  of  the  United 
States  with  Japan,  November  22,  1894,^  the  jurisdiction  of 
the  consular  courts  of  the  United  States  in  Japan  came  to  an 
end  July  17,  1899. 

In  general,  in  Mohammedan  and  non-Christian  states, 
treaty  stipulations  secure  to  the  consuls  of  Western  states 
the  right  of  exercising  extensive  criminal  and  civil  jurisdiction 
in  cases  involving  citizens  of  their  own  and  the  Eastern  states, 
or  in  cases  involving  citizens  of  their  own  and  other  Western 
states.2  In  some  of  the  Eastern  states  the  consuls  have 
exclusive  jurisdiction  over  all  cases  to  which  citizens  of  their 
states  are  parties;^  in  others  the  cases  involving  citizens  of 
the  Eastern  and  Western  states  are  tried  in  the  court  of  the 
defendant  in  the  presence  of  the  "authorized  official  of  the 
plaintiff's  nationality,"  who  may  enter  protest  if  the  proceed- 
ings are  not  in  accord  with  justice,^  while  in  certain  states  or 
for  certain  cases  mixed  courts  are  constituted.  Certain  West- 
ern states  in  their  domestic  laws  make  provisions  for  appeal 
from  the  decision  of  the  consular  court  to  specified  authori- 
ties, as  to  the  diplomatic  agent  or  to  some  domestic  tribunal. 

This  jurisdiction  is  exceptional,  furnishes  no  precedents  for 
international  law,  tends  to  become  more  restricted,  and  will 
doubtless  gradually  disappear.^ 

(/)  The  privileges  and  immunities  vary  according  to  the 
states  and  from  the  fact  that  a  consul  may  be  (1)  a  citizen 

'  29  U.  S.  Sts.  at  Large,  848. 

'  See  Sec.  66   for  extent  of  jurisdiction. 

'  U.  S.  Treaty  with  Borneo,  June  23,  1850,  Art.  IX,  Treaties  of  U.  S.,  102. 

*  U.  S.  Treaty  with  China,  Nov.  17,  1880,  Art.  IV,  Treaties  in  Force,  120. 

»  Hall,  note,  p.  323. 


DIPLOMACY  AND   INTERNATIONAL  RELATIONS        197 

of  the  state  in  which  he  exercises  his  consular  functions,  (2)  a 

domiciled  alien,  (3)  an  alien  engaged  in  business  or  some  other 

occupation  in  the  state  where  he  exercises  his 

Privileges  and    functions,   OF  (4)  a  citizen  of  the  accrediting 

immunities.  '  ,  " 

state  engaged  exclusively  upon  consular  busi- 
ness.^ It  is,  however,  necessary  that  the  state  which  grants 
an  exequatur  to,  or  receives  as  consul  a  person  from,  one  of 
the  first  three  classes,  grant  to  such  person  a  measure  of 
privilege  and  immunity  consistent  with  the  free  performance 
of  his  consular  duties. 

Each  consul  has  the  privilege  of  placing  above  the  door 
of  his  house  the  arms  of  the  state  which  he  serves,  generally 
also  of  flying  its  flag.  The  archives  and  official  property  are 
inviolable. 

In  the  case  of  a  consul  not  a  citizen  of  the  receiving  state 
and  engaged  exclusively  in  consular  business,  exemption  from 
arrest  except  on  a  criminal  charge,  when  he  may  be  punished 
by  local  laws  or  sent  home  for  trial;  exemption  from  witness 
duty,  though  testimony  may  be  taken  in  WTiting;  exemption 
from  taxation;  exemption  from  military  charges  and  service, 
— is  usually  conceded  by  custom  and  often  by  treaty.  It  is 
not,  however,  conceded  that  the  consular  residence  may  be 
used  as  an  asylum. 

The  consul  of  the  third  class,  who,  though  an  alien  to  the 
recei\dng  state,  engages  in  business  other  than  consular  duties, 
is  subject  to  all  local  laws  governing  similarly  circumstanced 
foreigners,  except  when  in  the  performance  of  his  functions. 
His  consular  effects  must  be  kept  distinct  from  those  apper- 
taining to  his  business  capacity,  which  last  are  under  local 
law. 

The  domiciled  alien  exercising  consular  functions  is  subject 
to  local  law  as  others  similarly  circumstanced,  which,  in  some 
states,  may  involve  considerable  obligations.     The  freedom 

1  Lehr,  §  1236  ff. 


198  INTERNATIONAL  LAW 

from  local  restrictions  sufficient  for  the  convenient  perform- 
ance of  his  consular  duties  is  implied  in  the  grant  of  the 
exequatur. 

The  reception  of  a  citizen  as  a  consular  representative  of 
a  foreign  state  does  not  confer  upon  him  the  personal  privileges 
and  immunities  of  any  of  the  other  classes,  but  only  the 
immunities  attaching  to  the  office  itself,  and  absolutely  neces- 
sary for  the  performance  of  its  duties,  as  the  right  to  use  the 
arms  above  the  office  door,  the  inviolability  of  archives,  and 
respect  for  his  authority  while  in  the  performance  of  his 
functions. 

In  some  of  the  Eastern  states  and  in  some  of  the  non- 
Christian  and  semicivilized  states  consuls  are  entirely  exempt 
from  local  jurisdiction,  enjoying  exemptions  similar  to  those 
of  diplomatic  agents. 

In  time  of  war  the  house  of  the  consul  is,  when  flying  the 
flag  of  the  state  which  he  serves,  specially  protected,  and  liable 
to  injury  only  in  case  of  urgent  military  necessity.  Consuls 
do  not  necessarily  withdraw  because  of  hostilities  with  the 
accrediting  state.^ 

In  general,  the  consul,  by  virtue  of  his  public  office,  is 
entitled  to  more  respect  than  a  simple  citizen,  or,  as  Heffter 
puts  it,  "  consuls  are  entitled  to  that  measure  of  inviolability 
which  will  enable  them  to  exercise  their  consular  functions 
without  personal  inconvenience."  ^ 

(g)  The  consular  office  may  be  vacated  by  a  given  occu- 
pant, (1)  by  death,  (2)  by  recall,  (3)  by  expiration  of  his  term 
of  service,   (4)  by  revocation  of  his  exequatur. 

Termination  of  ,  ,      ,  ,  !•-<.• 

consular  office.  ^  ^^^  ^^^*  cause  IS  the  Only  one  needmg  attention. 
The  exequatur  may  be  revoked  by  the  state 
issuing  it,  if  the  conduct  of  the  holder  be  displeasing  to  the 
state.  The  state  issuing  the  exequatur  is  sole  judge.  This 
does  not  necessarily  imply  any  discourtesy  to  the  accrediting 

»  "  De  Clerq  et  de  Vallat,"  I,  pp.  106,  107.  ^  §  244. 


DIPLOMACY  AND  INTERNATIONAL  RELATIONS        199 

state,  as  the  consul  does  not  represent  the  sovereignty  of 
the  state.  It  is  customary,  however,  to  give  the  accrediting 
state  an  opportunity  to  recall  its  consul.  Exequaturs  have, 
on  several  occasions,  been  withdrawn  from  consuls  who  have 
directly  or  indirectly  aided  the  enemies  of  the  receiving  state, 
or  have  given  offense  by  their  participation  in  the  public 
affairs  of  the  receiving  state.  Consequently  consuls  are 
usually  officially  advised  to  refrain  so  far  as  possible  from 
expressions  of  their  opinions  upon  public  affairs,  either  of 
the  receiving  or  sending  state. 

Appointment  and  Examination  of  Consuls 

Formerly  the  United  States  consuls  were  usually  changed 
on  the  election  of  a  new  President.  It  was  found  that  such  a 
policy  was  detrimental  to  the  interests  of  the  United  States, 
for  often  the  four  years  of  experience  would  be  an  excellent 
preparation  for  subsequent  service  and  a  reason  why  the  con- 
sul should  be  retained  rather  than  allowed  to  withdraw. 

With  a  view  to  the  promotion  of  the  efficiency  and  per- 
manency of  the  consular  service,  an  Act  of  Congress  of  April 
5,  1906,  made  it  practicable  for  the  President  of  the  United 
States  to  extend  to  the  consular  service  the  regulations  gov- 
erning selections  under  the  civil  service  laws.  Accordingly 
the  Presidents  have  from  time  to  time  issued  orders  providing 
for  promotion  on  basis  of  ''ability  and  efficiency,"  and  for  new 
appointments  after  examination.  The  examinations  are,  in 
general,  open  to  citizens  of  the  United  States  between  the 
ages  of  twenty-one  and  fifty  years  who  have  proper  physical, 
moral,  and  mental  qualifications.  While  the  Board  of  Ex- 
aminers may  determine  the  scope  and  method  of  examina- 
tions, certain  subjects  are  essential.  These  subjects  are  such 
as,  a  modern  language  other  than  English,  "the  natural,  in- 
dustrial, and  commercial  resources  and  the  commerce  of  the 


200  INTERNATIONAL  LAW 

United  States,  especially  with  reference  to  the  possibilities 
of  increasing  and  extending  the  trade  of  the  United  States 
with  foreign  countries;  political  economy;  elements  of  inter- 
national, commercial,  and  maritime  law."  It  was  also  pro- 
vided in  recent  regulations  that,  while  due  regard  should  be 
paid  to  the  geographical  distribution  of  appointees  among  the 
states  and  territories,  that  "neither  in  the  designation  for 
examination  or  certification  or  appointment  will  the  political 
affiliations  of  the  candidate  be  considered." 


OUTLINE  OF  CHAPTER  XIV 
TREATIES 

83.  DEFINITION   OF   A   TREATY. 

84.  OTHER    FORMS    OF   INTERNATIONAL   AGREEMENTS. 

(a)  Protocol. 

(b)  Declarations. 

(c)  Memoranda. 

(d)  Letters  and  notes. 

(e)  Sponsions. 

(f)  Cartels. 

(g)  Compromis. 

85.  THE  NEGOTIATION  OF  TREATIES. 

(a)  The  agreement  upon  the  terms  of  the  treaty. 

(b)  The  draft  usually  of  a  uniform  style. 

(c)  The  signing  of  the  treaty  and  its  binding  effect  on  the  state 

represented. 

(d)  Ratification,  or  acceptance  of  the  treaty  by  the  state. 

(1)  Refusal  to  ratify. 

(2)  Exchange  of  ratifications. 

(3)  Approbation,  adhesion,  accession. 

86.  THE  VALIDITY  OF  TREATIES. 

(a)  Parties  to  the  treaty  must  have  the  international  capacity  to 

contract. 

(b)  Agents  of  a  state  must  be  duly  authorized. 

(c)  Freedom  of  consent  necessary  in  agreements  between  states. 

(d)  Treaties  must  be  in  conformity  to  law. 

87.  THE  CLASSIFICATION  OF  TREATIES. 

(a)  Various  methods  of  classification. 

(b)  Treaty  of  guaranty. 

(c)  Treaty  of  alliance. 

201 


88.  THE  INTERPRETATION   OP   TREATIES. 

(a)  Rules  for  interpretation. 

(b)  Cases  of  conflicting  clauses. 

(c)  "  The  most  favored  nation  "  clause. 

89.  THE    TERMINATION    OF    TREATIES. 

(a)  By  complete  fulfillment  of  all  treaty  stipulations. 

(b)  By  the  expiration  of  the  time  agreed  upon. 

(c)  By  express  agreement  of  the  parties  concerned. 

(d)  Not  effective  when  the  execution  of  conditions  is  impossible  or 

contrary  to  the  principles  of  law  or  morality. 

(e)  By  renunciation  of  advantages  and  rights  secured  by  a  treaty. 

(f)  By  a  declaration  of  war. 

(g)  When  the  test  of  voidability  applies. 
(h)  By  act  of  denunciation. 


202 


CHAPTER  XIV 
TREATIES 

83.     Definition  of  a  Treaty 

A  treaty  is  an  agreement,  generally  in  writing,  and  always 
in  conformity  with  law,  between  two  or  more  states.  A 
treaty  may  establish,  modify,  or  terminate  obligations.  These 
obligations  must  be  such  as  are  legally  within  the  capacity 
of  the  states  concerned  to  negotiate,  A  treaty  runs  between 
states  only.  As  distinguished  from  other  forms  of  inter- 
national agreement,  a  treaty  is  usually  concerned  with  mat- 
ters of  high  state  importance,  with  a  considerable  number 
of  questions,  or  with  matters  involving  several  states. 

Separate  articles  are  clauses  attached  to  a  treaty  after 
ratification,  and  to  be  interpreted  with  reference  to  the 
whole. 

84.     Other  Forms  of  International  Agreements 

Besides  the  treaty,  which  is  the  most  formal  international 
agreement,  there  may  be  various  other  methods  of  expressing 
the  terms  of  international  agreements.  The  importance  of 
the  matter  contained  in  the  various  documents  is  not  neces- 
sarily in  proportion  to  their  formality. 

The  terms  "convention"  and  "treaty"  are  very  generally 
used  interchangeably,  though  strictly  the  scope  of  a  conven- 
tion is  less  broad,  and  usually  applies  to  some  specific  subject, 
as  to  the  regulation  of  commerce,  navigation,  consular  serv- 
ice, postal  service,  naturalization,  extradition,  boundaries, 
etc.    The  terms  below  are  often  used  loosely  in  practice. 

203 


204  INTERNATIONAL  LAW 

(a)  A  protocol,  or  proems  verbal,  is  usually  in  the  form  of 

official  minutes,  giving  the  conclusions  of  an  international 

conference  and  signed  at  the  end  of  each  session 

Protocol.  ,  ,  .  mi    •         1 

by  the  negotiators.  Ihis  does  not  require  rati- 
fication by  the  sovereign  as  in  the  case  of  treaties  and  con- 
ventions, though  it  may  be  binding  upon  the  good  faith  of 
the  states  concerned.  Ordinarily  the  persons  signing  the 
protocol  have  been  duly  authorized  by  their  respective  states 
in  advance.  The  term  "protocol"  is  sometimes  applied  to 
the  preliminary  draft  of  an  agreement  between  two  or  more 
states  as  to  the  agreements  entered  into  by  negotiators  in 
preparation  of  a  more  formal  document,  such  as  a  treaty  or 
convention.^ 

(6)  Declarations  are  usually  documents  containing  recipro- 
cal agreements  of  states,  as  in  granting  equal  privileges  in 
matters  of  trade  marks,  copyrights,  etc.,  to  the 

Declarations.  .  .  mi  •  i  n 

Citizens  of  each  state.  The  term  is  used  for  the 
documents,  (1)  which  outline  the  policy  or  course  of  con- 
duct which  one  or  more  states  propose  to  pursue  under 
certain  circumstances,  (2)  which  enunciate  the  principles 
adopted,  or  (3)  which  set  forth  the  reasons  justifying  a  given 
act. 

(c)  The  terms  "memoranda"  and  "memoires"  are  used  to 
indicate  the  documents  in  which  the  principles  entering  an 

international  discussion  are  set  forth,  together 

Memoranda.  .  . 

with  the  probable  conclusions.  These  docu- 
ments may  be  considered  by  the  proper  authorities,  e.g.  may 
be  sent  to  the  foreign  secretaries  of  the  states  concerned,  and 
contre-memoires  may  be  submitted.  These  documents  are 
generally  unsigned. 

{d)  Besides  the  above,  there  may  be  in  diplomatic  negotia- 

•For  various  protocols,  see  Treaties  of  U.  S.,  824,  1148;  30  U.  S.  Sts. 
at  Large,  1593;  ibid.,  1596.  For  the  protocol  between  the  United  States 
and  Spain  as  to  terms  of  peace,  see  30  U.  S.  Sts.  at  Large,  1742. 


Letters  and 
notes. 


TREATIES  205 

tions  letters  between  the  agents,  in  which  the  use  of  the 
first  or  second  person  is  common,  and  notes  which  are  more 
formal  and  usually  in  the  third  person.  These 
letters,  if  made  public,  may  have  much  force,  as 
in  the  case  of  the  collective  note  of  the  powers 
commonly  called  the  "Andrassy  note,"  by  which  the 
Powers  of  Europe  in  1875  held  that  in  Turkey  "reform 
must  be  adopted  to  put  a  stop  to  a  disastrous  and  bloody 
contest." 

(e)  When  representatives  of  states  not  properly  commis- 
sioned for  the  purpose,  or  exceeding  the  limits  of  their  au- 
thority, enter  into  agreements,  their  acts  are 

Sponsions.  n       l  •  j  •  •  r-t        ^ 

called  treaties  sub  spe  rati  or  sponsions.  Such 
agreements  require  ratification  by  the  state.  This  ratification 
may  be  explicit  in  the  usual  form,  or  tacit,  when  the  state 
governs  its  actions  by  the  agreements. 

(/)  Of  the  nature  of  treaties  are  cartels,  which  are  agree- 
ments made  between  belligerents,  usually  mutual,  regulating 
intercourse  during  war.  These  may  apply  to 
exchange  of  prisoners,  postal  and  telegraphic 
communications,  customs,  and  similar  subjects.  These  docu- 
ments are  less  formal  than  conventions,  usually  negotiated  by 
agents  specially  authorized,  and  do  not  require  ratification, 
though  fully  obligatory  upon  the  states  parties  to  the  agree- 
ment.^ Here  also  may  be  named  the  suspension  of  arms, 
which  the  chief  of  an  army  or  navy  may  enter  into  as  an 
agreement  for  the  regulation  or  cessation  of  hostilities  within 
a  limited  area  for  a  short  time  and  for  military  ends.  When 
such  agreements  are  for  the  cessation  of  hostilities  in  general, 
or  for  a  considerable  time,  they  receive  the  name  of  armis- 
tices or  truces.  These  are  sometimes  called  conventions  with 
the  enemy.  These  last  do  not  imply  international  negotia- 
tion. 

»  Wheat.  D.,  §§  254,  344. 


206  INTERNATIONAL   LAW 

(g)  The  term  "compromis"  is  now  generally  used  for  the 

agreement  by  which,  in  a  dispute  to  be  presented  to  a  court 

of  arbitration,   the  issue  is  defined,   the  time 

ompromis.       ^^^  manner  of  appointing  the  arbitrators,  the 

procedure,  etc.,  are  set  forth. 

Note.  Agreements  concluded  between  states  and  private 
indi\dduals  or  corporations  have  not  an  international  char- 
acter, and  do  not  come  within  the  domain  of  international  law. 
Such  agreements  may  include: — 

1.  Contracts  with  individuals  or  corporations  for  a  loan, 
colonization,  developing  a  country,  etc. 

2.  Agreements  between  princes  in  regard  to  succession,  etc. 

3.  Concordats  signed  by  the  Pope  as  such  and  not  as  a 
secular  prince. 

85.    The  Negotiation  of  Treaties 

The  negotiation  of  treaties  includes,  (a)  the  international 
agreement  upon  the  terms,  (6)  the  drafting  of  the  terms,  (c) 
the  signing,  and  (d)  the  ratification. 

(a)  The  first  step  preparatory  to  the  agreement  is  the  sub- 
mission of  proof  that  the  parties  entering  into  the  negotia- 
The  agreement  ^^^'^  ^^^  ^^^  qualified  and  authorized. ^  As 
upon  terms  of  the  sovereigns  themselves  do  not  now  in  person 
the  treaty.  negotiate  treaties,^  it  is  customaiy  for  those  who 
are  to  conduct  such  negotiations  to  be  authorized  by  a  com- 
mission generally  known  as  full  power.  The  negotiators  first 
present  and  exchange  their  full  powers.  They  may  be  some- 
what limited  in  their  action  by  instructions.^  Often  it  is  the 
dijilomatic  representatives  who  negotiate  with  the  proper 
authorities  of  the  state  to  which  they  are  accredited.  The 
negotiations  are  sometimes  written,  sometimes  verbal,  and  are 

'  Butler,  "Treaty-making  Power,"  pp.  4  ff. 

'  The  Holy  Alliance  of  1815  was  signed  by  three  sovereigns. 

3  See  Sec.  76. 


TREATIES  207 

preserved  in  the  proems  verbaux.  In  case  the  negotiations  are 
for  any  reason  discontinued  before  the  drafting  of  the  terms 
of  the  agreement,  it  is  customary  to  state  the  circumstances 
leading  to  this  act  in  a  protocol  signed  by  all  the  negotia- 
tors. Sometimes  this  takes  the  name  of  a  manifest  or  of  a 
declaration. 

(6)  The  draft  of  the  treaty  is  usually,  though  not  neces- 
sarily, of  a  uniform  style.  Many  early  treaties  opened  with 
The  draft  ^^  invocation  to  Deity.    This  is  not  the  custom 

usually  of  a  followed  by  the  United  States,  however.  The 
uniform  style,    ggj^gj-g^j  form  is  to  Specify  the  sovereigns  of  the 

contracting  states,  the  purpose  of  the  agreement,  and  the 
names  of  the  negotiators,  with  their  powers.  This  constitutes 
the  preamble.  Then  follow  in  separate  articles  the  agree- 
ments entered  into  forming  the  body  of  the  treaty,  the  con- 
ditions of  ratification,  the  number  of  copies,  the  place  of  the 
negotiation,  the  signatures  and  seals  of  the  negotiators. 
Sometimes  other  articles  or  declarations  ^  are  annexed  or 
added,  with  a  view  to  defining,  explaining,  or  limiting  words 
or  clauses  used  in  the  body  of  the  treaty.  Ordinarily  the 
same  formula  is  followed  as  in  the  portion  of  the  main  treaty 
subsequent  to  the  body  in  setting  forth  conditions  of  ratifica- 
tion, etc. 

The  order  of  the  states  parties  to  the  treaty,  and  of  the 
agents  negotiating  it,  varies  in  the  different  copies.  The  copy 
transmitted  to  a  given  state  party  to  the  treaty  contains  the 
name  of  that  state  and  of  its  agents  in  the  first  place,  so  far 
as  possible.  Each  negotiator  signs  in  the  first  place  the  copy 
of  the  treaty  to  be  transmitted  to  his  own  state,  and  if  the 
agents  of  more  than  one  other  state  sign  the  treaty,  they  sign 
in  alphabetical  order  of  their  states,  in  the  original  language 
of  the  convention.  This  is  known  as  the  principle  of  the 
alternat, 

^  The  Declaration  of  Paris,  1856. 


208  INTERNATIONAL  LAW 

The  following  is  the  beginning  and  end  of  the  Treaty  of 
Washington  relative  to  the  Alabama  Claims,  etc.,  including 
the  President's  proclamation  thereof:  ^ — 

"BY  THE  PRESIDENT  OF  THE  UNITED   STATES   OF 

AMERICA 

"A  Proclamation 

"Whereas  a  treaty,  between  the  United  States  of  America 
and  her  Majesty  the  Queen  of  the  United  Kingdom  of  Great 
Britain  and  Ireland,  concerning  the  settlement  of  all  causes 
of  difference  between  the  two  countries,  was  concluded  and 
signed  at  Washington  by  the  high  commissioners  and  plenipo- 
tentiaries of  the  respective  governments  on  the  eighth  day  of 
May  last;  which  treaty  is  word  for  word,  as  follows: — 

"'The  United  States  of  America  and  her  Britannic  Majesty, 
being  desirous  to  provide  for  an  amicable  settlement  of  all 
causes  of  difference  between  the  two  countries,  have  for  that 
purpose  appointed  their  respective  plenipotentiaries,  that  is  to 
say:  The  President  of  the  United  States  has  appointed,  on  the 
part  of  the  United  States,  as  Commissioners  in  a  Joint  High 
Commission  and  Plenipotentiaries  [here  follow  the  names];  and 
her  Britannic  Majesty,  on  her  part,  has  appointed  as  her  High 
Commissioners  and  Plenipotentiaries  [here  follow  the  names]. 

"'And  the  said  plenipotentiaries,  after  having  exchanged 
their  full  powers,  which  were  found  to  be  in  due  and  proper 
form,  have  agreed  to  and  concluded  the  following  articles: — 

[Here  follow  42  articles.] 

'"Article  XLIII 

"'The  present  treaty  shall  be  duly  ratified  by  the  President 
of  the  United  States  of  America,  by  and  with  the  advice  and 
consent  of  the  Senate  thereof,  and  by  her  Britannic  Majesty; 
and  the  ratifications  shall  be  exchanged  either  at  Washington 
or  at  London  within  six  months  from  the  date  hereof,  or  earlier 
if  possible. 

'  17  U.  S.  Sts.  at  Large,  863;  Treaties  of  U.  S.,  478. 


TREATIES  209 

"'In  faith  whereof,  we,  the  respective  plenipotentiaries, 
have  signed  this  treaty  and  have  hereunto  affixed  our  seals. 

"'Done  in  duplicate  at  Washington  the  eighth  day  of  May, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and 
seventy-one.' 

[Here  follow  the  seals  and  signatures.] 

"And  whereas  the  said  treaty  has  been  duly  ratified  on  both 
parts,  and  the  respective  ratifications  of  the  same  were  ex- 
changed in  the  city  of  London,  on  the  seventeenth  day  of 
June,  1871,  by  Robert  C.  Schenck,  Envoy  Extraordinary  and 
Minister  Plenipotentiary  of  the  United  States,  and  Earl  Gran- 
ville, her  Majesty's  Principal  Secretary  of  State  for  Foreign 
Affairs,  on  the  part  of  their  respective  governments: 

"Now,  therefore,  be  it  known  that  I,  Ulysses  S.  Grant, 
President  of  the  United  States  of  America,  have  caused  the 
said  treaty  to  be  made  public,  to  the  end  that  the  same,  and 
every  clause  and  article  thereof,  may  be  observed  and  fulfilled 
with  good  faith  by  the  United  States  and  the  citizens  thereof. 

"In  witness  whereof,  I  have  hereunto  set  my  hand  and 
caused  the  seal  of  the  United  States  to  be  affixed. 

"Done  at  the  City  of  Washington  this  fourth  day  of  July, 
in  the  year  of  our  Lord  one  thousand  eight  hundred  and  seventy- 
one,  and  of  the  Independence  of  the  United  States  the  ninety- 
sixth.  «U.  S.  Grant. 
"By  the  President: 

"  Hamilton  Fish,  Secretary  of  State." 

There  is  no  diplomatic  language,  though  various  languages 
have  from  time  to  time  been  more  commonly  used.  In  early 
treaties  and  diplomatic  works  Latin  was  very  common,  and 
it  was  used  so  late  as  the  Treaty  of  Utrecht  in  1713.  Spanish 
prevailed  for  some  years  toward  the  end  of  the  fifteenth  cen- 
tury. From  the  days  of  Louis  XIV,  when  the  French  par- 
ticularly became  the  court  language,  it  has  been  widely  used 
in  congresses  and  treaties.  Frequently,  when  used,  there 
have  been  inserted  in  the  treaties  provisions  that  the  use  of 


210  INTERNATIONAL  LAW 

French  should  not  be  taken  as  a  precedent.  The  French  lan- 
guage is,  however,  commonly  employed  in  congresses  in  which 
a  considerable  number  of  different  languages  are  represented, 
and  the  original  forms  of  the  treaties  are  drawn  in  French. 
During  the  nineteenth  century  this  has  been  very  common, 
as  in  the  acts  of  the  Congress  of  Vienna,  1815;  Aix-la-Chapelle, 
1818;  Paris,  1856;  Berlin,  1878  and  1885;  Brussels,  1890. 
Even  other  states  of  Europe,  in  making  treaties  with  Asiatic 
and  African  states,  have  agreed  upon  French  as  the  authori- 
tative text  for  both  states.  In  some  of  the  treaties  of  the 
United  States  and  the  Ottoman  Porte,  the  French  language 
is  used. 

It  is  customary,  when  the  treaty  is  between  states  having 
different  official  languages,  to  arrange  for  versions  in  both 
languages  in  parallel  columns,  placing  at  the  left  the  version 
in  the  language  of  the  state  to  which  the  treaty  is  to  be  trans- 
mitted. 

(c)  In  signing  the  treaty  each   representative  signs  and 

seals  in  the  first  place  the  copy  to  be  sent  to  his  own  state. 

The  order  of  the  other  signatures  may  be  by 
Signatures        j^^  ^^  -^^  ^^ie  alphabetical  order  of  the  states 

and  seals.  ^ 

represented.  The  signing  of  the  treaty  indicates 
the  completion  of  the  agreement  between  those  commissioned 
in  behalf  of  the  states  concerned.  This  does  not  irrevocably 
bind  the  states  which  the  signers  represent,  though  the  factthat 
its  representative  has  signed  a  treaty  is  a  reason  for  ratifi- 
cation which  cannot  be  set  aside  except  for  most  weighty  cause. 

(d)  Ratification  is  the  acceptance  by  the  state  of  the  terms 
of  the  treaty  which  has  been  agreed  upon  by  its  legally  qualified 

agent.     The  exchange  of  ratifications  is  usually 

Ratification,  or      ^  •   i     i  <irri 

acceptance  of  pro\aded  for  m  a  special  clause,  e.g.  1  he  pres- 
the  treaty  by     pjj|^  treaty  shall  bc  ratified,  and  the  ratifications 

tills   st&t6 

exchanged  at  ...  as  speedily  as  possible."  By 
this  clause  the  state  reserves  to  itself  the  right  to  examine 


TREATIES  211 

the  conditions  before  entering  into  the  agreement.  At  the 
present  time  it  is  held  that  even  when  not  expressed,  the 
"reserve  clause"  is  understood. 

The  ratification  conforms  to  the  domestic  laws  of  each 
state.  Ordinarily  it  is  in  the  form  of  an  act  duly  signed  and 
sealed  by  the  head  of  the  state.  In  the  act  of  ratification 
the  text  of  the  treaty  may  be  reproduced  entire,  or  merely 
the  title,  preamble,  the  first  and  last  articles  of  the  body 
of  the  treaty,  the  concluding  clauses  following  the  last 
article,  the  date,  and  the  names  of  the  plenipotentiaries. 

In  many  states  prior  approval  of  the  treaty  by  some 
legislative  body  is  necessary.  In  the  United  States  the  Con- 
stitution provides  that  the  President  "shall  have  power  by 
and  with  the  advice  and  consent  of  the  Senate,  to  make 
treaties,  provided  two-thirds  of  the  Senators  present  con- 
cur." 1  In  the  United  States  it  has  frequently  happened 
that  the  Senate  has  not  approved  of  treaties,  and  they  have 
therefore  failed  of  ratification.  This  was  the  fate  of  the 
Fishery  Treaty  with  Great  Britain  in  1888. 

The  ratification  may  be  refused  for  sufficient  reason.  Each 
state  must  decide  for  itself  what  is  sufficient  reason.  The 
following  have  been  offered  at  various  times  as 
Refusal  to  valid  reasons  for  refusal  of  ratification :  (1)  Error 
in  points  essential  to  the  agreement,  (2)  the 
introduction  of  matters  of  which  the  instructions  of  the  pleni- 
potentiaries do  not  give  them  power  to  treat,  (3)  clauses  con- 
trary to  the  public  law  of  either  of  the  states,  (4)  a  change 
in  the  circumstances  making  the  fulfillment  of  the  stipulations 
unreasonable,  (5)  the  introduction  of  conditions  impossible 
of  fulfillment,  (6)  the  failure  to  meet  the  approval  of  the 
political  authority  whose  approval  is  necessary  to  give  the 
treaty  effect,  (7)  the  lack  of  proper  credentials  on  the  part 
of  the  negotiators  or  the  lack  of  freedom  in  negotiating. 

'  Art.  II,  §  2,  2. 


212  INTERNATIONAL  LAW 

The  exchange  of  ratifications  is  usually  a  solemn,  i.e.  highly 
formal,  ceremony  by  which  parties  to  the  treaty  or  conven- 
tion guarantee  to  each  other  the  execution  of 
Exchange  of      j^.^  ^gj.j^g^     ^g  many  copies  of  the  act  of  ratifi- 

ratifications. 

cation  are  prepared  by  each  state  as  there  are 
state  parties  to  the  treaty.  When  the  representatives  of  the 
states  assemble  for  the  exchange  of  ratifications,  they  submit 
them  to  each  other.  These  are  carefully  compared,  and  if 
found  in  correct  form,  they  make  the  exchange  and  draw 
up  a  proces  verbal  of  the  fact,  making  as  many  copies  of  the 
proems  verbal  as  there  are  parties  to  the  treaty.  At  this  time 
also  a  date  for  putting  into  operation  the  provisions  of  the 
treaty  may  be  fixed.  Sometimes  clauses  explanatory  of 
words,  phrases,  etc.,  in  the  body  of  the  treaty  are  agreed  upon. 
Such  action  usually  takes  the  form  of  a  special  proces  verbal 
or  protocol. 

Unless  there  is  a  stipulation  as  to  the  time  when  a  treaty 
becomes  effective,  it  is  binding  upon  the  signatory  states 
from  the  date  of  signing,  provided  it  is  subsequently 
ratified. 

A  state  may  assume  a  more  or  less  close  relation  to  the 
agreements  contained  in  treaties  made  by  other  states,  by 
Approbation  nieasures  less  formal  than  ratification.  These 
adhesion,  measures  are  commonly  classed  as  acts  of  (1) 

accession.  approbation,  by  which  a  state  without  becorning 

in  any  way  a  party  to  the  treaty  assumes  a  favorable  attitude 
toward  its  provisions ;  (2)  adhesion,  by  which  a  state  announces 
its  intention  to  abide  by  the  principles  of  a  given  treaty  with- 
out becoming  party  to  it;  and  (3)  accession,  by  which  a  state 
becomes  a  party  to  a  treaty  which  has  already  been  agreed 
upon  by  other  states. 

Note.  After  the  completion  of  the  negotiation  it  is  cus- 
tomary to  promulgate  and  pu])lish  the  treaty  or  convention. 


TREATIES  213 

Both  these  acts  are  matters  of  local  rather  than  international 
law.  The  promulgation  is  the  announcement  by  the  chief  of 
the  state  that  the  treaty  or  convention  has  been  made,  and 
the  publication  is  the  official  announcement  of  the  contents  of 
the  treaty  or  convention.     See  p.  208. 


86.     Validity  of  Treaties 

Four  conditions  are  very  generally  recognized  as  essential 
to  the  validity  of  a  treaty. 

(a)  The  parties  to  the  treaty  must  have  the  international 
capacity  to  contract,  i.e.  ordinarily  they  must  be  independent 

states. 
fon^tTont!"^^        (6)  The  agents  acting  for  the  state  must  be 
duly  authorized,  i.e.  the  plenipotentiaries  must 
act  within  their  powers. 

(c)  There  must  be  freedom  of  consent  in  the  agreements 
between  the  states.  This  does  not  imply  that  force,  as  by 
war,  reprisals,  or  otherwise,  may  not  be  used  in  bringing 
about  a  condition  of  afTairs  which  may  lead  a  state,  without 
parting  with  its  independence,  to  make  such  sacrifices  as  may 
be  necessary  to  put  an  end  thereto.  No  constraint  can  be 
put  upon  the  negotiators  of  the  treaty  by  threats  of  personal 
violence,  or  in  any  way  to  prohibit  their  free  action,  without 
invahdating  their  acts.  There  is  no  freedom  of  consent  when 
the  agreement  is  reached  through  fraud  of  either  party,  and 
treaties  so  obtained  are  not  valid. 

(d)  The  treaties  must  be  in  conformity  to  law,  as  embodied 
in  the  generally  recognized  principles  of  international  law 
and  the  established  usage  of  states.  States  could  not  by 
treaty  appropriate  the  open  sea,  protect  the  slave  trade,  par- 
tition other  states  unless  as  a  measure  of  self-protection, 
deprive  subjects  of  essential  rights  of  humanity,  or  enter 
into  other  agreements  that  could  not  be  internationally 
obligatory. 


214  INTERNATIONAL  LAW 


87.     Classification  of  Treaties 

(a)  Treaties  have  been  variously  classified,  but  the  classifica- 
tions serve  no  great  purpose.     The  most  common  classification 
is  clearly  set  forth  by  Calvo.     As  regards  form, 

Various  ''  .  /<^x  . 

methods  of  treaties  may  be  (1)  transitory,  or  (2)  permanent 
classification.  ^^  perpetual;  as  regards  nature,  (1)  personal, 
relating  to  the  sovereign,  or  (2)  real,  relating  to  things  and  not 
dependent  on  the  sovereign  person;  as  regards  effects,  (1) 
equal  or  (2)  unequal,  or  according  to  other  effects,  simple  or 
conditional,  definitive  or  preliminary,  principal  or  accessory, 
etc.;  as  regards  objects,  (1)  general  or  (2)  special.^  In  a 
narrower  sense  treaties  may  be  divided  into  many  classes,  as 
political,  economic,  guaranty,  surety,  neutrality,  alliance, 
friendship,  boundary,  cession,  exchange,  jurisdiction,  ex- 
tradition, commerce,  navigation,  peace,  etc.,  and  con- 
ventions relating  to  property  of  various  kinds,  includ- 
ing literary  and  artistic,  to  post  and  telegraph,  etc.  Most 
of  these  classes  are  sufficiently  described  by  their  titles. 
The  nature  of  some  of  the  classes  is  not  fully  indicated  in 
the  title, 

(6)  A  treaty  of  guaranty  is  an  engagement  by  which  a  state 

agrees  to  secure  another  in  the  possession  of  certain  specified 

rights,  as  in  the  exercise  of  a  certain  form  of 

Treaty  of  government,  in  the  free  exercise  of  authority 

guaranty.  o  ?  i  p  i 

within  its  dominions,  in  freedom  from  attack, 
in  the  free  navigation  of  specified  rivers,  in  the  exercise  of 
neutrality,  etc.  In  1831  and  1839,  by  the  Treaties  of  Lon- 
don, the  independence  and  neutrality  of  Belgium  were  guar- 
anteed, and  in  the  Treaty  of  1832  the  affairs  in  Greece  were 
adjusted  under  guaranty.  The  Treaty  of  Paris,  1856,  guar- 
antees "the  independence  and  the  integrity  of  the  Ottoman 

•Calvo,  §§  G43-668. 


TREATIES  215 

Empire."  When  the  guaranteeing  state  is  not  only  bound 
to  use  its  best  efforts  to  secure  the  fulfillment  of  the  treaty 
stipulations,  but  to  make  good  the  conditions  agreed  upon 
in  the  treaty  provided  one  of  the  principals  fails  to  meet  its 
obligations,  the  treaty  is  not  merely  one  of  guaranty,  but 
also  a  treaty  of  surety.  This  happens  in  case  of  loans  more 
particularly. 

(c)  Agreements  of  states  to  act  together  for  specific  or 
general  objects  constitute  treaties  of  alliance.     The  nature  of 
these  treaties  of  alliance  varies  with  the  terms. 
ama*nce°*  They   may   be  defensive,  offensive,  equal,  un- 

equal, general,  special,  permanent,  temporary, 
etc.,  or  may  combine  several  of  these  characteristics. 

88.     Interpretation  of  Treaties 

Sometimes  clauses  interpreting  treaties  are  discussed  and 
adopted  by  the  states  signing  a  treaty.  These  acts  may  take 
the  form  of  notes,  protocols,  declarations,  etc.  The  dispatch 
of  the  French  ambassador  at  London,  August  9,  1870,  to  the 
foreign  secretary  interprets  certain  clauses  of  the  treaty 
guaranteeing  the  neutrality  of  Belgium.  In  cases  where  no 
preliminary  agreement  in  regard  to  interpretation  is  made, 
there  are  certain  general  principles  of  interpretation  which 
are  ordinarily  accepted.  Many  treatises  follov/  closely  the 
chapters  of  Grotius  and  Vattel  upon  this  subject. ^ 

(a)  The  rules  usually  accepted  are:  (1)  Words  of  the  treaty 

are  to  be  taken  in  the  ordinary  and  reasonable  sense  as  when 

elsewhere  used  under  similar  conditions.     (2)  If 

Rules  for        •   ^j^^  words  have  different  meanings  in  the  dif- 

interpretation.  ° 

ferent  states,  the  treaty  should  so  far  as  possible 
be  construed  so  as  to  accord  with  the  meaning  of  the  words 
in  the  states  which  accepted  the  conditions.     (3)  In  default 

'  Grotius,  11,  16;  Vattel,  II,  17. 


216  INTERNATIONAL  LAW 

of  a  plain  meaning,  the  spirit  of  the  treaty  or  a  reasonable 
meaning  should  prevail.  (4)  Unless  the  fundamental  rights 
of  states  are  expressly  the  subject  of  the  agreement,  these 
rights  are  not  involved.  (5)  That  which  is  clearly  granted 
by  the  treaty  carries  with  it  what  is  necessary  for  its  reali- 
zation. 

(b)  In  the  cases  of  conflicting  clauses  in  a  single  treaty  or 
conflicting  treaties,  the  general  rules  are:  (1)  Special  clauses 

prevail  against  general  clauses;  prohibitory 
Cases  of  con-      aorainst   permissive,   unless   the   prohibitory  is 

flicting  clauses,      ^  '^  '  _  ^  ^  *' 

general  and  the  permissive  special;  of  two  pro- 
hibitory clauses,  the  one  more  distinctly  mandatory  prevails; 
of  two  similar  obligatory  clauses  the  state  in  whose  favor  the 
obligation  runs  may  choose  which  shall  be  observed.  (2)  In 
case  of  conflict  in  treaties  between  the  same  states  the  later 
prevails;  in  case  a  later  treaty  with  a  third  state  conflicts 
with  an  earlier  treaty  with  other  states,  the  earlier  treaty 
pre  vails.  1 

(c)  "The  most  favored  nation"  clause  is  now  common  in 
treaties  of  commercial  nature.  This  clause  ordinarily  binds 
"  The  most  ^^^  State  to  grant  to  its  co-signer  all  the  priv- 
favored  na-  ileges  similarly  granted  to  all  other  states,  and 
tion    clause,     ^^^j^    ^^   gj^^U    ^^q   granted   under   subsequent 

treaties.  When  privileges  are  granted  by  one  state  in  ex- 
change for  privileges  granted  by  another,  as  in  a  reciprocal 
reduction  in  tariff  duties,  a  third  state  can  lay  claim  to  like 
reduction  only  upon  fulfillment  of  like  conditions.  Under 
"the  most  favored  nation"  clause.  Art.  VIII,  of  the  Treaty 
of  1803,  between  France  and  the  United  States,  France 
claimed  that  its  ships  were  entitled  to  all  the  privileges 
granted  to  any  other  nation  whether  so  granted  in  return  for 
special  concessions  or  not.     This  position  the  United  States 

'  For  the  subject  of  interpretation,  see  Hall,  p.  335  ff, ;  2  Phillimore,  Pt 
V,  Ch.  VIII;  Calvo,  §§  1649-1650;  Pradier-Fod6r6,  §§  1171-1188. 


TREATIES  217 

refused  to  accept,  and  by  Article  VII  of  the  Treaty  of  1831 
France  renounced  the  claims. ^ 


89.     Termination  of  Treaties 

Treaties  in  general  come  to  an  end  under  the  following 
conditions : — 

(a)  The  complete  fulfillment  of  all  the  treaty  stipulations 
terminates  a  treaty. 

(6)  The  expiration  of  the  hmit  of  time  for  which  the 
treaty  agreement  was  made  puts  an  end  to  the  treaty. 

(c)  A  treaty  may  be  terminated  by  express  agreement  of 
the  parties  to  it. 

(d)  When  a  treaty  depends  upon  the  execution  of  condi- 
tions contrary  to  the  principles  of  international  law  or  morality 
or  impossible  of  performance,  it  is  not  effective. 

(e)  A  state  may  renounce  the  advantages  and  rights 
secured  under  a  treaty,  e.g.  England  renounced  the  protect- 
orate of  the  Ionian  Islands  in  1864,  which  she  had  held  since 
1815. 

(/)  A  declaration  of  war  may  put  an  end  to  those  treaties 
which  have  regard  only  to  conditions  of  peaceful  relations, 
as  treaties  of  alUance,  commerce,  navigation,  etc.,  and  may 
suspend  treaties  which  have  regard  to  permanent  conditions, 
as  treaties  of  cession,  boundaries,  etc.  The  treaty  of  peace 
between  China  and  Japan,  May  8,  1895,  Article  6,  asserts 
that,  "All  treaties  between  Japan  and  China  having  come 
to  an  end  in  consequence  of  the  war,  China  engages,  immedi- 
ately upon  the  exchange  of  ratifications  of  this  act,  to  appoint 
plenipotentiaries  to  conclude,  with  the  Japanese  plenipo- 
tentiaries, a  treaty  of  commerce  and  navigation,  and  a  con- 
vention to  regulate  frontier  intercourse  and  trade."    In  the 

*  For  discussion  of  the  "most  favored  nation"  clause,  see  2  Whart., 
§  134,  also  Appendix  to  Vol.  Ill,  p.  888;  J.  R.  Herod,  "Favored  Nation 
Treatment,"  5  Moore,  257. 


218  INTERNATIONAL  LAW 

war  between  the  United  States  and  Spain  the  royal  decree 
issued  by  Spain,  April  23,  1898,  Article  I,  asserts  that  "The 
state  of  war  existing  between  Spain  and  the  United  States 
terminates  the  treaty  of  peace  and  friendship  of  the  27th 
October,  1795,  the  protocol  of  the  12th  January,  1877,  and 
all  other  agreements,  compacts,  and  conventions  that  have 
been  in  force  up  to  the  present  between  the  two  countries." 
The  declaration  of  war  also  gives  special  effect  to  certain 
treaties  and  conventions,  as  to  those  in  regard  to  care  of 
wounded,  neutral  commerce,  etc. 

(g)  A  treaty  is  voidable  when,  (1)  it  is  concluded  in  excess 
of  powers  of  contracting  parties,  (2)  when  it  is  concluded 
because  of  stress  of  force  upon  negotiators  or  because  of 
fraud,  (3)  when  the  conditions  threaten  the  self-preservation 
of  the  state  or  its  necessary  attributes.  Hall  gives  as  the 
test  of  voidability  the  following:  "Neither  party  to  a  con- 
tract can  make  its  binding  effect  dependent  at  his  will  upon 
conditions  other  than  those  contemplated  at  the  moment 
when  the  contract  was  entered  into,  and  on  the  other  hand 
a  contract  ceases  to  be  binding  so  soon  as  anything  which 
formed  an  implied  condition  of  its  obligatory  force  at  the 
time  of  its  conclusion  is  essentially  altered."  ^  The  condi- 
tion rebus  sic  stantibus  is  always  implied.^ 

{h)  A  treaty  may  be  terminated  by  the  simple  act  of  de- 
nunciation when  this  right  of  denunciation  is  specified  in  1;he 
treaty  itself,  or  when  the  treaty  is  of  such  a  nature  as  to  be 
voidable  by  an  act  of  one  of  the  parties.  "There  can  be  no 
question  that  the  breach  of  a  stipulation  which  is  material 
to  the  main  object,  or  if  there  are  several,  to  one  of  the  main 
objects,  liberates  the  party  other  than  that  committing  the 
breach  from  the  obligations  of  the  contract;  but  it  would  be 
seldom  that  the  infraction  of  an  article  which  is  either  dis- 
connected from  the  main  object  or  is  unimportant  whether 

»  Hall,  p.  351.  '  Hooper,  Adm'r  v.  United  States,  22  Ct.,  CI.  408. 


TREATIES  219 

originally  or  by  change  of  circumstances,  with  respect  to  it, 
could  in  fairness  absolve  the  other  party  from  performance 
of  his  share  of  the  rest  of  the  agreement,  though  if  he  had 
suffered  any  appreciable  harm  through  the  breach  he  would 
have  a  right  to  exact  reparation,  and  end  might  be  put  to 
the  treaty  as  respects  the  subject-matter  of  the  broken  stipu- 
lation." 1 

»  Hall,  p.  353. 


OUTLINE  OF  CHAPTER  XV 

AMICABLE  SETTLEMENT  OF  DISPUTES  AND  NON- 
HOSTILE  REDRESS 

90.  THE    AMICABLE    SETTLEMENT    OF    DISPUTES. 

(a)  By  diplomatic  negotiation. 

(b)  By  the  good  oflQces  of  a  third  state. 

(c)  By  the  International  Commission  of  Inquiry. 

(d)  By  conferences  and  congresses. 

(e)  By  arbitration. 

(1)  The  Permanent  Court  of  Arbitration  at  The  Hague. 

91.  METHODS   OF   NON-HOSTILE   REDRESS. 

92.  RETORSION. 

93.  REPRISALS. 

94.  EMBARGO. 

95.  PACIFIC    BLOCKADE. 

(a)  Instances  of  pacific  blockades. 

(b)  Present  attitude  toward  pacific  blockade. 


220 


CHAPTER  XV 

AMICABLE     SETTLEMENT    OF    DISPUTES    AND     NON- 
HOSTILE    REDRESS 

90.     The  Amicable  Settlement  of  Disputes 

It  is  now  generally  admitted  that  in  the  settlement  of 
international  disputes  war  should  be  regarded  as  a  last  resort. 
Other  means  of  amicable  settlement  should  be  exhausted 
before  any  measures  of  force  are  tried.  Among  these  ami- 
cable means  the  most  common  are  diplomatic  negotiations, 
the  good  offices  or  friendly  mediation  of  a  third  state,  con- 
ferences and  congresses,  and  arbitration. i 

(a)  The  settlement  of  disputes  by  diplomatic  negotiation 

follows  the  ordinary  course  of  diplomatic  busi- 

negoStion*'*'     ness,  whether  committed  to  regular  or  special 

agents.  The  larger  number  of  disputed  questions 

are  settled  by  diplomatic  negotiation. 

(6)  In  the  case  of  disputes  not  easily  settled  by  diplomatic 
negotiations,  a  third  state  sometimes  offers  its  good  offices 
By  the  good  ^^  mediator.  Its  part  is  not  to  pass  on  a  dis- 
offices  of  a  puted  question,  but  to  devise  a  means  of  settle- 
t  ir  state.  ment.  The  tender  involves  the  least  possible 
interference  in  the  dispute,  and  is  regarded  as  a  friendly  act. 
Either  disputant  may  decline  the  tender  without  offense. 
One  of  the  disputants  may  request  the  tender  of  good  offices 
or  of  mediation.  Ordinarily  good  offices  extend  only  to  the 
establishing  of  bases  of,   and  the  commencement   of,   the 

'  See  Holls's  "Hague  Peace  Conference,"  176  et  seq. 

22X 


222  INTERNATIONAL  LAW 

negotiations.  The  more  direct  work  of  carrying  on  the  nego- 
tiations is  of  the  nature  of  mediation.  The  distinction  be- 
tween these  is  not  always  made  in  practice.  Either  party 
may  at  any  time  refuse  the  mediator's  offices. 

(c)  The  Hague  Convention  provides  for  an  International 
Commission  of  Inquiry  to  facilitate  the  solution  of  differences 
„     ^   ,  which  diplomacy  has  not  settled  ''by  elucidat- 

By  the  Inter-       .  ,  . 

national  Com-  iug  the  facts  by  mcans  of  an  impartial  and 
mission  of         conscientious  investigation."     "The  Report  of 

Inquiry.  in  ...,.., 

the  Commission  is  limited  to  a  statement  of 
facts,  and  has  in  no  way  the  character  of  an  award.  It  leaves 
the  conflicting  Powers  entire  freedom  as  to  the  effect  to  be 
given  to  its  statement."  ^  The  provision  for  this  International 
Commission  of  Inquiry  was  put  to  the  test  at  the  time  of  the 
Russo-Japanese  war,  1904-1905.  A  Russian  fleet  proceeding 
to  the  East  in  the  early  morning  of  October  22,  1904,  fired 
upon  certain  British  trawlers  off  the  Dogger  Banks  in  the 
North  Sea.  The  claim  was  made  that  the  firing  was  due  to 
the  apprehension  that  the  vessels  seen  in  the  darkness  were 
Japanese  torpedo  boats.  There  was  immediately  widespread 
popular  clamor  in  Great  Britain  for  war  against  Russia. 
Both  states,  however,  agreed  to  submit  the  matter  to  a 
Commission  of  Inquiry  to  ascertain  the  facts.  The  majority 
of  the  commission  found  that  the  firing  was  not  justifiable.^ 
Russia  immediately  paid  compensation. 

The  practicability  of  the  International  Commission  of 
Inquiry  was  established.  As  to  methods  of  procedure  and 
in  certain  other  respects  it  was  discovered  that  improvements 
might  be  made.  The  Second  Peace  Conference  at  The  Hague 
in  1907  accordingly  made  the  necessary  revision.^ 

(d)  The  settlement  of  questions  liable  to  give  rise  to  dis- 
putes by  conferences  and  congresses  is  common,  and  implies 

'  Appendix,  p.  396.  » U.  S.  For.  Rel.  1905,  p.  473. 

'  Appendix,  pp.  392  et  seq. 


AMICABLE  SETTLEMENT  OF  DISPUTES  223 

a  meeting  of  representatives  of  the  interested  parties  for 
consideration  of  the  terms  of  agreement  upon  which  a  ques- 
tion may  be  adjudicated.     In  general,  the  con- 
By  conferences  gj^s^Qj^s  of  a  congress  are  more  formal  and  are 

and  congresses.  f 

regarded  as  having  more  binding  force  than 
those  of  a  conference,  though  this  distinction  is  not  always 
made.  States  not  directly  interested  may  participate  in  con- 
ferences or  congresses,  and  sometimes  as  mediators  play  a 
leading  part. 

(e)  Arbitration  involves  an  agreement  between  the  dis- 
putants to  submit  their  differences  to  some  person  or  per- 
sons by  whose  decision  they  will   abide.     Ar- 

By  arbitration. 

bitration  has  been  common  from  early  times. 
In  the  first  Pan-American  Conference  in  1889  and  subsequent 
similar  conferences,  the  principle  of  arbitration  has  received 
earnest  support.  The  Convention  for  the  Pacific  Settlement 
of  International  Disputes  signed  at  the  First  Hague  Peace 
Conference,  July  29,  1899,  provides  that  "The  Signatory 
Powers  undertake  to  organize  a  permanent  Court  of  Arbi- 
tration, accessible  at  all  times  .  .  .  competent  for  all  arbi- 
tration cases,  unless  the  parties  agree  to  institute  a  special 
Tribunal."  It  also  provided  for  the  general  organization  of 
the  Court  at  The  Hague,  for  the  procedure,  and  for  an  award 
without  appeal,  unless  the  right  to  revision  be  reserved  in 
the  "Compromis."  Other  powers  might  adhere,  and  any 
contracting  power  might  withdraw  its  adherence  one  year 
after  notification.  The  United  States  gave  its  adherence 
under  reservation  in  regard  to  the  Monroe  Doctrine. 

The  Second  Peace  Conference  at  The  Hague  in  1907 
desirous  "of  insuring  the  better  working  in  practice  of 
Commissions  of  Inquiry  and  Tribunals  of  Arbitration,  and  of 
facilitating  recourse  to  arbitration  in  cases  which  allow  of 
a  summary  procedure;  have  deemed  it  necessary  to  revise  in 
certain  particulars  and  to  complete  the  work  of  the  First 


224  INTERNATIONAL  LAW 

Peace  Conference  for  the  pacific  settlement  of  international 
disputes."  A  new  Convention  for  the  Pacific  Settlement  of 
International  Disputes  ^  was  concluded  October  18,  1907.  The 
United  States  ratified  this  Convention  under  the  same  reser- 
vation as  to  the  Monroe  Doctrine  and  with  the  understanding 
that  recourse  to  the  court  by  the  United  States  should  be  in 
accord  with  the  general  or  special  treaties  of  arbitration  to 
which  the  United  States  might  be  a  party.  By  the  Conven- 
tion of  1907  the  Convention  of  1899  was  modified  in  order 
to  meet  more  fully  the  objects  for  which  it  was  originally 
drawn. 

At  first  the  Hague  Court  of  the  Arbitration  for  Interna- 
tional Differences  was  thought  by  many  to  be  of  questionable 
utility.  The  court  has,  however,  met  with  increasing  favor 
since  1902,  when  the  United  States  and  Mexico  submitted  to 
it  the  first  case  relating  to  the  Pius  Fund,  and  many  cases 
have  followed. 

(1)  The  Permanent  Court  of  Arbitration  at  The  Hague  has 
competence  for  all  arbitration  cases. 

(2)  It  is  cqnstituted  by  the  selection  by  each  contracting 
power  for  a  period  of  six  years  of  four  persons,  at  most.  All 
The  Permanent  ^^  these  are  inscribed  as  members  of  the  court. 
Court  of  From  this  list  of  "Arbitrators"  the  states  par- 

r  itration.  ^-^^  ^^  ^  Controversy  must  choose.  Failing  to 
agree  on  the  constitution  of  the  court,  each  party  chooses 
two  arbitrators,  and  these  together  choose  an  umpire,  or 
failing  this,  a  selected  third  power  names  the  umpire,  or  two 
powers  named  by  the  parties  make  the  choice,  and  to  the 
arbitrators  the  compromis  defining  the  case  is  submitted. 

(3)  The  procedure  if  not  determined  in  advance  by  the 
parties  is  prescribed  in  the  Convention.  There  may  be 
"  pleadings  and  oral  discussions."  Great  freedom  is  allowed 
in  securing  the  fullest  presentation  of  each  case. 

'  Appendix  IV,  pp.  389  et  seq. 


AMICABLE  SETTLEMENT  OF  DISPUTES  225 

(4)  The  decision  of  the  tribunal  is  by  a  majority  vote,  and 
the  award  ''must  give  the  reasons  on  which  it  is  based." 

(5)  The  publication  of  the  award  is  in  public  sitting. 

(6)  Demand  for  revision  of  the  award  on  the  basis  of  the 
discovery  of  some  new  fact  can  be  made  if  the  right  has 
been  reserved  in  the  com'promis} 

Since  the  Hague  Conference  of  1907  many  states  have 
negotiated  special  arbitration  treaties,  and  certain  states  have 
agreed  to  leave  all  disputes  which  might  arise  between  them 
to  arbitral  adjudication. 

Of  about  thirty  cases  of  arbitration  during  the  nineteenth 
century,  the  decision  in  one  case  was  rejected  by  both  par- 
ties to  the  dispute,  and  in  one  case  rejected  by  one  of  the  par- 
ties. In  several  other  instances  one  party  has  refused  to 
submit  to  arbitration  questions  readily  lending  themselves 
to  such  settlement,  even  though  requested  by  the  other 
party.2 

91.     Methods  of  Non-hostile  Redress 

Good  offices,  mediation,  and  arbitration  can  extend  only 
to  international  differences  of  certain  kinds.  Such  measures 
are  not  applicable  to  all  cases  of  disagreement,  nor  are  such 
measures  always  acceptable  to  both  parties.  Consequently 
certain  other  practices  have  arisen  with  the  view  of  obtaining 
satisfaction  by  measures  short  of  war.  Formerly  an  indi- 
vidual might  be  commissioned  by  a  letter  of  marque  and 
reprisal  to  obtain  satisfaction  from  a  state  for  injuries  which 
he  had  suffered.  This  practice  is,  however,  discontinued,^ 
and  satisfaction  must  be  obtained  through  the  proper  state 
channels.  The  means  by  which  satisfaction  may  be  claimed 
vary,  and  are  usually  classed  as  retorsions,  reprisals,  of  which 
embargo  is  an  important  variety,  and  pacific  blockades. 


'  For  text  of  Convention,  see  Appendix,  p.  389. 

'See,    on    this   entire   subject,    Moore's    "International   Arbitration 
Holls's  "Hague  Peace  Conference,"  176-305.         ^  3  Phillimore,  21,  22. 


>>. 


226  INTERNATIONAL  LAW 

92.  Retorsion. 

Retorsion  is  a  species  of  retaliation  in  kind.^  Retorsion 
may  not  consist  in  acts  precisely  identical  with  those  which 
have  given  offense,  though  it  is  held  that  the  acts  should  be 
analogous.  The  offense  in  consequence  of  which  measures 
of  retorsion  are  taken  may  be  an  act  entirely  legitimate  and 
desirable  from  the  point  of  view  of  the  offending  state. 
Another  state  may,  however,  consider  the  act  as  discourteous, 
injurious,  discriminating,  or  unduly  severe.  In  recent  years 
commercial  retorsion  has  become  a  very  important  means  of 
retaliation  which,  bearing  heavily  upon  modern  communities, 
may  lead  to  a  speedy  settlement  of  difficulties.  The  tariff 
wars  of  recent  years  show  the  effectiveness  of  commercial 
retorsion,  e.g.  the  measures  in  consequence  of  the  tariff  dis- 
agreements between  France  and  Switzerland  in  1892.  These 
measures  of  retorsion  should  always  be  within  the  bounds 
of  municipal  and  international  law. 

93.  Reprisals 

Reprisals  are  acts  of  a  state  performed  with  a  view  to 
obtaining  redress  for  injuries.  The  injuries  leading  to  re- 
prisals may  be  either  to  the  state  or  to  a  citizen,  and  the  acts 
of  reprisal  may  fall  upon  the  offending  state  or  upon  its  citi- 
zens either  in  goods  or  person.  The  general  range  of  acts 
of  reprisal  may  be  by  (1)  the  seizure  and  confiscation  of  pub- 
lic property  or  private  property ,2  and  (2)  the  restraint  of  inter- 
course, political,  commercial,  or  general.  In  extreme  cases, 
acts  of  violence  upon  persons  belonging  to  one  state,  when  in 
a  foreign  state,  have  led  to  similar  acts,  upon  the  part  of  the 
state  whose  subjects  are  injured,  against  the  subjects  of  the 
foreign  state.     This  practice  is  looked  upon  with  disfavor, 

•  Pra(lior-Fod(5r6,  2634-2636. 

'  For  the  rules  in  regard  to  the  collection  of  contract  debts,  see  Sec.  99 
(c),  p.  237. 


AMICABLE  SETTLEMENT  OF  DISPUTES  227 

though  it  might  be  sanctioned  by  extremest  necessity.  Acts 
of  retaliation  for  the  sake  of  revenge  are  generally  dis- 
countenanced. 

94.     Embargo 

Embargo  consists  in  the  detention  of  ships  and  goods 
which  are  within  the  ports  of  the  state  resorting  to  this 
means  of  reprisal.  It  may  be  (1)  civil  or  pacific  embargo, 
the  detention  of  its  own  ships,  as  by  the  act  of  the  United 
States  Congress  in  1807,  to  avoid  risk  on  account  of  the 
Berlin  Decree  of  Napoleon,  1806,  and  the  British  Orders  in 
Council,  1807;  or  (2)  hostile,  the  detention  of  the  goods  and 
ships  of  another  state.  It  was  formerly  the  custom  to  detain 
within  the  ports  of  a  given  state  the  ships  of  the  state  upon 
which  it  desired  to  make  reprisals,  and  if  the  relations  between 
the  states  led  to  war  to  confiscate  such  ships.  Hostile  em- 
bargo may  now  be  said  to  be  looked  upon  with  disfavor,  and 
a  contrary  policy  is  generally  adopted,  by  which  merchant 
vessels  may  be  allowed  a  certain  time  in  which  to  load  and 
depart  even  after  the  outbreak  of  hostilities.  By  the  procla- 
mation of  the  President  of  the  United  States  declaring  that 
war  with  Spain  had  existed  since  April  21,  1898,  it  was  also 
declared  that  "Spanish  merchant  vessels,  in  any  ports  or 
places  within  the  United  States,  shall  be  allowed  till  May  21, 
1898,  inclusive,  for  loading  their  cargoes  and  departing  from 
such  ports  or  places."  ^  Spain,  by  the  royal  decree  of  April 
23,  1898,  declared  "A  term  of  five  days  from  the  date  of  the 
publication  of  the  present  royal  decree  in  the  Madrid  Gazette 
is  allowed  to  all  United  States  ships  anchored  in  Spanish 
ports,  during  which  they  are  at  liberty  to  depart."  ^ 

The  Hague  Convention  of  1907  relative  to  the  Status  of 
Enemy  Merchant  Ships  at  the  Outbreak  of  Hostilities,  while 
not  fixing  the  number  of  days  of  grace  stated  that  "it  is  de- 

'  30  U.  S.  Sts.  at  Large,  1770.         '  Proclamations  and  Decrees,  p.  93. 


228  INTERNATIONAL  LAW 

sirable  that  it  should  be  allowed  to  depart  freely,  either  imme- 
diately or  after  a  reasonable  number  of  days  of  grace,  and 
to  proceed,  after  being  furnished  with  a  pass,  direct  to  its 
port  of  destination  or  any  other  port  indicated."  ^ 

95.     Pacific  Blockade 

Pacific  blockade  is  a  form  of  reprisal  or  constraint  which 
consists  in  the  blockading  by  one  or  more  states  of  certain 
ports  of  another  state  without  declaring  or  making  war  upon 
that  state.  In  the  conduct  of  such  blockades  practice  has 
varied  greatly.  In  general,  however,  the  vessels  of  states 
not  parties  to  the  blockade  are  not  subject  to  seizure.  Such 
vessels  may  be  visited  by  a  ship  of  the  blockading  sc^uadron 
in  order  to  obtain  proof  of  identity.  Whether  vessels  under 
foreign  flags  are  liable  to  other  inconveniences  or  to  any 
penalties  is  not  defined  by  practice  or  opinion  of  text  writers. 
''The  Institute  of  International  Law,"  in  1887,  provided  that 
pacific  blockade  should  be  effective  against  the  vessels  of  the 
blockaded  party  only.  This  position  seemed  to  be  one  which 
could  be  generally  accepted.  From  the  nature  of  pacific 
blockade  as  a  measure  short  of  war,  its  consequences  should 
be  confined  only  to  the  parties  concerned.  The  pacific  block- 
ade of  Greece  in  1886  extended  only  to  vessels  flying  the 
Greek  flag,2  but  the  admirals  of  the  Great  Powers  in  the 
pacific  blockade  of  Crete  in  1897  endeavored  to  establish 
the  right  to  control  other  than  Greek  vessels  if  they  carried 
merchandise  for  the  Greek  troops  or  for  the  interior  of  the 
island.  As  no  case  arose  to  test  the  claim,  this  question 
cannot  be  regarded  as  settled. 

The  provisions  of  the  pacific  blockade  of  Crete  in  1897 
were  as  follows: — 

"The  blockade  will  be  general  for  all  ships  under  the  Greek 
flag. 

« Appendix,  p.  424.  » Pari.  Papers,  Greece,  No.  4,  1886. 


AMICABLE  SETTLEMENT  OF  DISPUTES  229 

"  Ships  of  the  six  powers  or  neutral  may  enter  into  the  ports 
occupied  by  the  powers  and  land  their  merchandise,  but  only 
if  it  is  not  for  the  Greek  troops  or  the  interior  of  the  island. 
These  ships  may  be  visited  by  the  ships  of  the  international 
fleets. 

"The  limits  of  the  blockade  are  comprised  between  23°  24' 
and  26°  30'  longitude  east  of  Greenwich,  and  35°  48'  and  34°  45' 
north  latitude."  ^ 

The  Secretary  of  State  of  the  United  States,  in  acknowl- 
edging the  receipt  of  the  notification  of  the  action  of  the 
powers,  said:  "I  confine  myself  to  taking  note  of  the  com- 
munication, not  conceding  the  right  to  make  such  a  blockade 
as  that  referred  to  in  your  communication,  and  reserving  the 
consideration  of  all  international  rights  and  of  any  question 
which  may  in  any  way  affect  the  commerce  or  interests  of 
the  United  States."  ^  The  weight  of  authority  supports  the 
position  of  the  United  States. 

(a)  The  first  attempt  to  establish  a  blockade  without  re- 
sorting to  war  was  in  1827,  when  Great  Britain,  France, 
Instances  of  ^^^  Russia  blockaded  the  coasts  of  Greece  with 
pacific  a  view  to  putting  pressure  upon  the  Sultan,  its 

nommal  ruler.  Since  that  time  there  have  been 
pacific  blockades  varying  in  nature:  blockade  of  the  Tagus 
by  France,  1831;  New  Granada  by  England,  1836;  Mexico  by 
France,  1838;  La  Plata  by  France,  1838  to  1840;  La  Plata 
by  France  and  England,  1845  to  1848;  Greece  by  England, 
1850;  Formosa  by  France,  1884;  Greece  by  Great  Britain, 
Germany,  Austria,  Italy,  and  Russia,  1886;  Zanzibar  by 
Portugal,  1888;  Crete  by  Great  Britain,  Germany,  Austria, 
France,  Italy,  and  Russia,  1897,  and  Venezuela  by  Great 
Britain,  Germany  and  Italy,  1902.  This  blockade  of  1902 
was  at    first  announced  as  a  pacific   blockade,   and  when 

1  The  London  Gazette,  March  19,  1897. 
*  U.  S.  For.  Rel.  1897,  p.  255. 


230  INTERNATIONAL  LAW 

third  states  raised  objection  was  transformed  into  a  war 
blockade.^ 

(6)  From  these  instances  it  may  be  deduced  (1)  that  pacific 
blockade  is  a  legitimate  means  of  constraint  short  of  war, 
_  ,  ...  (2)  that  those  states  parties  to  the  blockade  are 
tude  toward  pa-  Iwund  by  its  conscqucnccs,  (3)  that  as  a  matter 
cific  blockade,  ^j  policy  it  may  be  advisable  to  resort  to  pacific 
l)lockade  in  order  to  avoid  the  more  serious  resort  to  war, 
antl  (4)  that  states  not  parties  to  the  pacific  blockade  are 
in  no  way  bound  to  observe  it,  though  their  ships  cannot 
complain  because  they  are  required  to  establish  their  identity 
in  the  ordinary  manner.  These  conclusions  seem  to  be  in 
harmony  with  the  spirit  of  the  Hague  conventions  limiting 
the  effect  of  hostilities  to  the  period  of  the  war  subsequent 
to  a  declaration.  To  determine  the  nationality  of  a  ship  the 
so-called  "right  of  approach"  may  be  exercised. 
»  U.  S.  For.  Rel.  1903,  pp.  417  ff. 


PART  FOUR 
INTERNATIONAL  LAW  OF  WAR 


OUTLINE  OF  CHAPTER  XVI 
WAR 

96.  DEFINITION   OF   WAR. 

97.  COMMENCEMENT   OF   WAR. 

(a)  Historical  practice. 

(b)  Rules  of  the  Hague  Conference. 

(c)  Civil  war. 

98.  DECLARATION   AND   NOTIFICATION   OF   WAR. 

(a)  Historical  practice. 

(b)  Provisions  of  the  Hague  Conference. 

99.  OBJECT   OF    WAR. 

(a)  From  the  political  point  of  view. 

(b)  From  the  military  point  of  view. 

(c)  Limitation  by  the  Hague  Conference. 

100.     GENERAL   EFFECTS   OF   WAR. 

(a)  The  general  and  immediate  effects. 

(1)  To  suspend  all  non-hostile  intercourse  between  the  states. 

(2)  To  suspend  all  the  ordinary  non-hostile  intercourse  be- 

tween the  citizens  of  the  states.  "" 

(3)  To  introduce  new  principles  in  intercourse  with  other 

states. 

(4)  To  abrogate  or  suspend  certain  treaties. 

(b)  The  Hague  Convention  with  respect  to  the  Laws  and  Customs 

of  War  on  Land. 


232 


CHAPTER  XVI 
WAR 

96.     Definition  of  War 

Gentilis,  one  of  the  earliest  writers  on  the  laws  of  war, 
defined  war  in  1588  as  "a  properly  conducted  contest  of 
armed  public  forces."  ^  The  nature  of  such  contests  varied 
with  circumstances,  and  wars  were,  accordingly,  classified  by 
early  writers  as  public,  private,  mixed,  etc.,  distinctions  that 
now  have  little  more  than  historical  value.^  Wars  are  now 
sometimes  classified  as  international  and  civil. 

97.     Commencement  of  War 

It  is  now  assumed  that  peace  is  the  normal  relation  of 
states.^  When  these  relations  become  strained  it  is  cus- 
tomary for  one  or  both  of  the  states  to  indicate  this  condition 
by  discontinuing  some  of  the  means  of  peaceful  intercom- 
munication, or  by  some  act  short  of  war.  The  withdrawal 
of  a  diplomatic  representative,  an  embargo,  or  any  similar 
action  does  not  mark  the  commencement  of  war. 

(a)  War  formerly  commenced  with  the  first  act  of  hostili- 
ties, unless  a  declaration  fixed  an  earlier  date,  and  in  case 
of  a  declaration  subsequent  to  the  first  act  of  hostilities, 
war  dated  from  the  first  act.    A  proclamation  of  the  blockade 

•  "De  Jure  Belli,"  I,  11,  "Bellum  est  publicorum  armorum  justa  con- 
tentio";  Instr.  U.  S.  Armies,  §  20. 

'  Halleck,  Ch.  XVI;  Calvo,  §  1866  ff. 

'  The  United  States  wars  of  the  nineteenth  centiiry  were,  June,  1812- 
Feb.,  1815;  March,  1846-Feb.,  1848;  April,  1861-April,  1865;  April,  1898- 
August,  1898. 

233 


234  liNTERNATIONAL  LAW 

of   Cuban  ports  preceded  the  declaration  of  war  between 
.Spain  and  the  United  States  in  1898.i     Similarly,  hostilities 
were  begun  before  the  declaration  of  war  between 
Historical  Qj-^jj^^  ^nd  Japan  in  1894,2  and  between  Russia 

practice.  ^^^  ^^^^^^  .^  ^^^^     Indeed,  few  of  the  wars 

of  the  last  two  centuries  have  been  declared  before  the  out- 
break of  hostilities,  and  many  have  not  been  declared  formally 
at  all.  In  the  case  of  the  war  in  South  Africa,  early  in  Octo- 
ber, 1899,  the  government  of  the  Transvaal  requested  the 
government  of  Great  Britain  to  give  "an  immediate  and 
affirmative  answer"  not  later  than  5  p.m.  on  October  11th 
to  certain  questions  in  the  accompanying  ultimatum  as  to 
settling  differences  by  arbitration,  the  withdrawal  of  British 
troops,  etc.,  stating  that  if  the  answer  was  not  satisfactory, 
it  would  be  regarded  as  "a  formal  declaration  of  war."  The 
government  of  Great  Britain  replied  that  the  conditions 
demanded  were  such  that  the  government  deemed  it  impos- 
sible to  discuss  them.     Hostilities  immediately  followed. 

(6)  The  present  rules  in  regard  to  the  commencement  of 

war  as  agreed  upon  at  The  Hague  in  1907  provide  that  hos- 

,,.         tilities  between  the  contracting  parties  "must 

Rules  of  the  "^   ^  . 

Hague  not  commence  without  previous  and  explicit 

Conference.  vvarning,  in  the  form  either  of  a  reasoned  decla- 
ration of  war  or  of  an  ultimatum  with  conditional  declaration 
of  war." 

(c)  Civil  war  naturally  is  not  preceded  by  a  declaration, 

but  exists  from  the  time  of  the  recognition  of  the  belligerency 

by  an  outside  state,  or  from  the  date  when  the 

Civil  war.  ,       ,     ,  •  .      r  •      j. 

parent  state  engages  m  some  act  or  war  against 
the  insurgent  party .^  In  the  case  of  the  Civil  War  in  the 
United  States,  the  proclamation  of  blockade  of  the  Southern 

»  30  U.  S.  Sts.  at  Large,  1769,  1776. 

'  Takahashi,  Chino-Japanese,  42  et  seq. 

•  Prize  Cases,  2  Black,  U.  S.  635;  Scott,  475. 


WAR  235 

ports  by  President  Lincoln  was  held  to  be  sufficient  ac- 
knowledgment of  a  state  of  war.^ 

98,     Declaration  and  Notification  of  War 

(a)  In  ancient  times  wars  between  states  were  entered 

upon   with   great   formality.     A   herald  whose   person   was 

inviolate  brought  the  challenge,  or  formal  decla- 

Historicai  ration,  which  received  reply  with  due  formality. 

practice.  '  .       ,  ,  *'  *' 

At  the  beginning  of  the  eighteenth  century  this 
practice  had  become  unusual,  and  in  the  days  of  Vattel  (1714- 
1767)  the  theory  of  the  necessity  of  a  formal  declaration  was 
set  aside.  It  was,  however,  maintained  that  a  proclamation 
or  manifesto  should  be  issued  for  the  information  of  the  sub- 
jects of  the  states  parties  to  the  war,  and  for  the  informa- 
tion of  neutrals.  The  practice  became  general,  and  was 
regarded  as  obligatory .2 

Provisions  of  ^^)  ^^  ^^^^  ^^^  Hague  Convention  relative 

the  Hague  to  the  Opening  of  Hostilities  provided  as  to 
Conference.  ^^^  declaration  or  ultimatum,  and  as  to 
(2)  notification: 

"Article  I.  The  contracting  powers  recognize  that  hos- 
tilities between  themselves  must  not  commence  without  pre- 
vious and  explicit  warning,  in  the  form  either  of  a  reasoned 
declaration  of  war  or  of  an  ultimatum  with  conditional  declara- 
tion of  war." 

"  Art.  II.  The  existence  of  a  state  of  war  must  be  noti- 
fied to  the  neutral  powers  without  delay,  and  shall  not  take 
effect  in  regard  to  them  until  after  the  receipt  of  a  notification, 
which  may,  however,  be  given  by  telegraph.  Neutral  powers, 
nevertheless,  cannot  rely  on  the  absence  of  notification  if  it  is 
clearly  estabhshed  that  they  were  in  fact  aware  of  the  existence 
of  a  state  of  war."  ^ 

*  Takahashi,  Chino-Japanese,  38  et  seq.  *  Calvo,  §  1910. 

»  Scott,  "Conferences,"  p.  199. 


236  INTERNATIONAL  LAW 

Such  requirements  are  reasonable  in  view  of  the  changes 
which  a  state  of  war  brings  about  in  the  relations  of  the  par- 
ties concerned,  and  of  neutrals.  The  declarations  usually 
specify  the  date  from  which  the  war  begins,  and  hence  have 
weight  in  determining  the  nature  of  acts  prior  to  the  decla- 
ration, as  the  legal  effects  of  war  depend  on  the  declaration. 

The  constitution  of  a  state,  written  or  unwritten,  deter- 
mine'S  in  what  hands  the  right  to  declare  war  shall  rest,  e.g. 
in  the  United  States  in  Congress. 

By  act  of  the  United  States  Congress  of  April  25,  1898,^ 
it  was  declared: — 

"First,  That  war  be,  and  the  same  is  hereby,  declared  to 
exist,  and  that  war  has  existed  since  the  twenty-first  day  of 
April,  Anno  Domini  eighteen  hundred  and  ninety  eight,  in- 
cluding said  day,  between  the  United  States  of  America  and 
the  Kingdom  of  Spain. 

"  Second,  That  the  President  of  the  United  States  be,  and  he 
hereby  is,  directed  and  empowered  to  use  the  entire  land  and 
naval  forces  of  the  United  States,  and  to  call  into  the  actual 
service  of  the  United  States  the  mihtia  of  the  several  States, 
to  such  extent  as  may  be  necessary  to  carry  this  Act  into 
effect."  2 

99.     Object  of  War 

(a)  The  object  of  war  may  be  considered  from  two  points 
of  \new,  the  political  and  the  military.  International  law 
From  the  Cannot  determine  the  limits  of  just  objects^  for 

political  point  which  a  State  may  engage  in  war.  Politically 
the  objects  have  covered  a  wide  range,  though 
there  is  a  growing  tendency  to  limit  the  number  of  objects 
for  which  a  state  may  go  to  war.  It  is  generally  held  that 
self-preservation  is  a  proper  object,  but  as  each  state  must 
decide  for  itself  what  threatens  its  existence  and  well-being, 

'  30  U.  S.  Sis.  at  Large,  364. 

'  The  French  declaration  of  war  against  Prussia  in  1870  is  eiven  in 
2  Lornmer,  44J.  ^ 


WAR  237 

even  this  object  may  be  very  broadly  interpreted.  History 
shows  that  it  has  not  been  difficult  from  the  political  point 
of  view  to  find  an  object  of  war  when  the  inclination  was 
present  in  the  state.  The  nominal  are  often  not  the  real 
objects,  and  the  changing  conditions  during  the  progress  of 
the  war  may  make  the  final  objects  quite  different  from  the 
initial  objects.  The  simple  cost  of  carrying  on  hostilities 
sometimes  changes  the  conditions  upon  which  peace  can  be 
made.  The  classification  of  causes  and  objects  formerly  made 
has  little  weight  in  determining  whether  a  state  will  enter 
upon  war.  The  questions  of  policy  and  conformity  to  current 
standards  are  the  main  ones  at  the  present  time. 

(6)  The  object  of  war  in  the  military  sense  *'  is  a  renewed 
state  of  peace,"  1  or  as  stated  in  the  English  manual,  "to 
From  the  procure  the  complete  submission  of  the  enemy 

military  point  at  the  earliest  possible  period  with  the  least 
of  view.  possible    expenditure    of    men    and    money." 

The  "Institute  of  International  Law,"  Oxford  session  of 
1880,  gave  as  a  general  principle  that  the  only  legitimate 
end  that  a  state  may  have  in  war  is  to  weaken  the  mili- 
tary strength  of  the  enemy.  In  general  the  ultimate  ob- 
ject of  war  is  to  establish  a  permanent  peace.  The  means 
naturally  accord  with  that  end  and  must  under  present 
regulations  be  humane. 

(c)  The  Hague  Conference  of  1907  endeavored  to  remove 
Limitation  by  ^^^  ^^  ^^^  frequent  objccts  of  war  by  limiting 
the  Hague  by  convention  the  employment  of  force  for 
Conference.        ^^^  recovery  of  contract  debts  as  follows: 

"Article  I.  The  Contracting  Powers  agree  not  to  have 
recourse  to  armed  force  for  the  recovery  of  contract  debts 
claimed  from  the  Government  of  one  country  by  the  Govern- 
ment of  another  country  as  being  due  to  its  nationals. 

"This  undertaking  is,   however,   not   apphcable  when  the 

*  Inst.  U.  S.  Armies,  §  29 ;  Appendix,  p.  355. 


238  INTERNATIONAL  LAW 

debtor  State  refuses  or  neglects  to  reply  to  an  offer  of  arbitra- 
tion, or,  after  accepting  the  offer,  prevents  any  'Compromis' 
from  being  agreed  on,  or,  after  the  arbitration,  fails  to  submit  to 
the  award/'  i 

100.     General  Effects  of  War 

(a)  The  general  and  immediate  effects  of  war  are: — 
(1)  To  suspend  all  non-hostile  intercourse   between  the 

The  general       states  parties  to  the  war. 

and  immediate       (2)  To  suspend  the  Ordinary  non-hostile  in- 

effects.  tercourse  between   the   citizens  of   the   states 

parties  to  the  war. 

(3)  To  introduce  new  principles  in  the  intercourse  of  the 
states  parties  to  the  war  with  third  states.  These  impose 
new  duties  upon  neutrals  and  allies. 

(4)  To  abrogate  or  suspend  certain  treaties: — 

(a)  To  abrogate  those  treaties  which  can  have  force 
only  in  time  of  peace,  e.g.  of  amity,  commerce,  naviga- 
tion, etc. 

(b)  To  suspend  those  treaties  which  are  permanent 
and  naturally  revive  at  the  end  of  the  war,  e.g.  of  bound- 
aries, public  debts,  etc, 

(c)  To  bring  into  operation  treaties  concerning  the 
conduct  of  hostilities. 

(6)  The  Convention  with  Respect  to  the  Laws  and  Cus- 
_        ^.  toms  of  War  on  Land,  signed  at  The  Hague  on 

Convention  on  ^      o  o 

the  Laws  and     Octobcr   18,  1907,  in  a  measure  supplants  all 
Customs  of        other  codifications  and  rules  upon  this  subject. 
In  cases  for  which  the   Convention    provides, 
the  signatory  powers  are  thereby  bound; 

"in  cases  not  included  in  the  Regulations  adopted  by  them 
the  inhabitants  and  the  belligerents  remain  under  the  protec- 

'  Scott,  "Confrroncoa,"  p.  104.  This  Convention  introduces  a  modified 
form  of  the  "  Dnigo  Doctrine."  For  statement  of  which,  see  U.  S.  For. 
Rel.  190:5,  p.  1. 


WAR  239 

tion  and  the  rule  of  the  principles  of  international  law  as  they 
result  from  the  usages  estabUshed  among  civilized  peoples, 
from  the  laws  of  humanity,  and  the  dictates  of  the  public 
conscience."  i 

The  provisions  are  to  become  binding  upon  the  contracting 
states,  and  are  to  be  made  the  regulations  for  their  armed 
land  forces.  Non-signatory  states  may  adhere  to  the  Con- 
vention upon  giving  proper  notification.^  This  Convention 
has  been  so  widely  adopted  that  it  may  be  said  to  be  generally 
binding  for  the  subjects  of  which  it  treats.^  Earlier  codes 
and  orders  must  be  consulted  for  subjects  not  contained  in 
the  Hague  Convention.* 

'  Preliminary  Declaration,  Appendix,  p.  409.  '  Ibid.,  Appendix,  p.  410. 
^  List  of  Signatory  States,  Appendix,  p.  389.         »See  Appendices. 


OUTLINE  OF  CHAPTER  XVII 
STATUS  OF   PERSONS  IN  WAR 

101.  PERSONS   AFFECTED    BY    WAR. 

(a)  Subjects  of  enemy  states. 

(b)  Subjects  of  neutral  states. 

(c)  Combatants  and  noncombatants. 

102.  COMBATANTS. 

(a)  Status  of  combatants  allowed  to  two  classes  engaging  in  de- 

fensive hostilities. 

(b)  Status  of  combatants  not  allowable  for  those  engaging  in  ag- 

gressive hostilities  without  state  authorization. 

103.  NONCOMBATANTS. 

(a)  Status  of  noncombatants  within  a  territory  under  control  of  an 

enemy. 

(b)  Status  of  subjects  of  one  belligerent  state  within  the  jurisdiction. 

of  the  other. 


240 


CHAPTER  XVII 
STATUS   OF   PERSONS  IN  WAR 

101.     Persons  Affected  by  War 

(a)  By  the  strict  theory  of  war  "the  subjects  of  enemy 
states  are  enemies."  ^  The  treatment  of  the  subjects  of 
enemy  states  is  not,  however,  determined  by  the  allegiance 
alone,  but  in  part  by  conduct  and  in  part  by  domicile  of  the 
subject. 

(6)  The  subjects  of  neutral  states  are  affected  by  their 
relations  to  the  hostile  states  as  established  by  their  own 
government,  as  determined  by  their  conduct,  and  as  deter- 
mined by  their  domicile. 

(c)  By  conduct  persons  are  divided  into  combatants  and 
noncombatants,  according  as  they  do  or  do  not  participate 
in  the  hostilities.  The  status  of  such  persons  may  be  further 
modified  by  domicile  or  by  political  allegiance. 

102.     Combatants 

Combatants  in  the  full  sense  are  the  regularly  authorized 
military  and  naval  forces  of  the  states.  They  are  liable  to 
the  risks  and  entitled  to  the  immunities  of  warfare,  and  if 
captured  become  prisoners  of  war. 

The  Hague  Convention  of  1907  respecting  the  Laws  and 
Customs  of  War  on  Land,  which  was  a  revision  of  that  of 
1899,  provided  that 

>  Hall,  p.  390;  Instr.  U.  S.  Armies,  §§  20,  21,  22;  Appendix,  pp.  353,  354. 

241 


242  INTERNATIONAL  LAW 

"Article  I.  The  laws,  rights,  and  duties  of  war  apply  not 
only  to  armies,  but  also  to  miUtia  and  volunteer  corps  fulfilling 
the  follo^ving  conditions: — 

"1.  To  be  commanded  by  a  person  responsible  for  his  sub- 
ordinates; 

"2.  To  have  a  fixed  distinctive  emblem  recognizable  at  a 
distance; 

"3.  To  carry  arras  openly;  and 

"  4.  To  conduct  their  operations  in  accordance  with  the  laws 
and  customs  of  war. 

"  In  countries  where  militia  or  volunteer  corps  constitute  the 
army,  or  form  part  of  it,  they  are  included  under  the  denomina- 
tion 'army.'"  ^ 

(a)  The  status  of  combatants  is  also  allowed  to  two  classes 
which  engage  in  defensive  hostilities: — 

(1)  The  officers  and  crew  of  a  merchant  vessel  which 
defends  itself  by  force  are  liable  to  capture  as  prisoners 
of  war. 

(2)  With  regard  to  levies  en  masse  much  difference  of 
opinion  existed.  Article  10  of  the  Declaration  of  Brus- 
sels, 1874,  was  adopted  at  the  Hague  Conferences  in 
1899  and  1907,  and  may  be  considered  as  representing 
a  generally  accepted  position,  namely,  "  The  population 
of  a  non-occupied  territory,  who,  on  the  approach  of  the 
enemy,  of  their  owti  accord  take  up  arms  to  resist  the 
invading  troops,  without  having  had  time  to  organize 
themselves  in  conformity  with  Article  1  [providing  for 
responsible  leader,  uniform,  etc.],  shall  be  considered  as 
belligerents  if  they  carry  arms  openly  and  if  they  respect 
the  laws  and  customs  of  war."  2 

(b)  The  status  of  combatants  is  not  allowable  for  those 
who,  without  state  authorization,  engage  in  aggressive  hos- 
tilities. 

'  Appendix,  p.  411.  »  See  Appendix,  p.  411. 


STATUS  OF  PERSONS  IN  WAR  243 

(1)  When  in  the  time  of  war  the  officers  and  crew  of 
a  merchant  vessel  attack  another  merchant  vessel,  they 
are  liable  to  punishment  according  to  the  nature  of  their 
acts,  and  the  state  to  which  they  owe  allegiance  is  only 
indirectly  responsible,  nor  can  they  claim  its  protec- 
tion. 

(2)  When  bands  of  men  without  state  authorization 
and  control,  such  as  guerrilla  troops  or  private  persons, 
engage  in  offensive  hostilities,  they  are  hable  to  the 
same  treatment  as  above  mentioned. 

(3)  Spies  are  those  who,  acting  secretly  or  under 
false  pretenses,  collect  or  seek  to  collect  information 
in  the  districts  occupied  by  the  enemy,  with  the  inten- 
tion of  communicating  it  to  the  opposing  force.^  Such 
agents  are  not  forbidden,  but  are  hable  to  such  treatment 
as  the  laws  of  the  capturing  army  may  prescribe.  This 
may  be  death  by  hanging,  though  a  spy  is  always  entitled 
to  a  trial.  The  office  of  spy  is  not  necessarily  dishonor- 
able. 

"Soldiers  not  in  disguise  who  have  penetrated  into 
the  zone  of  operations  of  a  hostile  army  to  obtain  in- 
formation are  not  considered  spies.  Similarly,  the  fol- 
lowing are  not  considered  spies:  soldiers  and  civiHans, 
carrying  out  their  mission  openly,  charged  with  the 
dehvery  of  dispatches  destined  either  for  their  own 
army  or  for  that  of  the  enemy.  To  this  class  belong 
likewise  individuals  sent  in  balloons  to  deliver  dis- 
patches, and  generally  to  maintain  communication  be- 
tween the  various  parts  of  an  army  or  a  territory."  ^ 

103.     Noncombatants 

Noncombatants  include  those  who  do  not  participate  in 
the  hostilities.     In  practice  this  status  is  generally  conceded 
»  Appendix,  pp.  367,  416.  '  Appendix,  p.  416. 


244  INTERNATIONAL  LAW 

to  women,  children,  clergy,  scientists,  artists,  professional 
men,  laborers,  etc.,  who  make  no  resistance,  whether  subjects 
of  the  state  or  not.  These  are,  of  course,  liable  to  the  hard- 
ships consequent  upon  war. 

(rt)  When  the  armed  forces  of  one  state  obtain  authority 
over    territory    previously    occupied     by     the 

status  of  non-  j       t  ^  i  ^^  ^ 

combatants  Other  statc,  the  noncombatant  population  is 
within  a  terri-    fj.^>g  £j.qj^  g^jj  yioleuce  or  Constraint  other  than 

tory  under  .       i     i  m-,  -^  mi 

control  of  an  that  required  by  military  necessity,  ihey 
enemy.  ^yc,  liable,  however,  to    the    burdens  imposed 

by  civilized  warfare. 

(6)  Subjects  of  one  of  the  belligerent  states  sojourning 
within  the  jurisdiction  of  the  other  were  in  early  times 
_    ^      ,  detained   as   prisoners.     While   Grotius    (1625) 

subjects  of  one  allows  this  ou  the  ground  of  weakening  the 
belligerent         forces   of  the   enemy ,^    and   while   Ayala   had 

state  within  the  i  .         t~.       i         i 

jurisdiction  of  earlier  (1597)  sanctioned  it,^  Bynkershoek,  writ- 
the  other.  jj^g  jj^  1737^  mentions  it  as  a  right  seldom  used. 
The  detention  of  English  tourists  by  Napoleon  in  1803  was 
not  in  accord  with  modern  usage.  During  the  eighteenth 
century,  the  custom  was  to  secure,  by  treaty  stipulation,  a 
fixed  time  after  the  outbreak  of  hostilities  during  which 
enemy  subjects  might  withdraw.  While  similar  provisions 
are  inserted  in  many  treaties  of  the  nineteenth  century,  the 
practice  may  be  said  to  be  so  well  established  that,  in  absence 
of  treaty  stipulations,  a  reasonable  time  would  be  allowed 
for  withdrawal.  A  large  number  of  treaties  of  the  nine- 
teenth century  have  provisions  to  the  effect  of  Article  XXVI 
of  the  treaty  between  the  United  States  and  Great  Britain 
of  1794:  "The  merchants  and  others  of  each  of  the  two 
nations  residing  in  the  dominions  of  the  other  shall  have 
the  privilege  of  remaining  and  continuing  their  trade,  so  long 

"'DeJureBelli,"III,  ix,  4. 

'  "De  Jure  et  Officiis  Bellicis,"  I,  v,  25. 


STATUS  OF  PERSONS  IN  WAR  245 

as  they  live  peaceably  and  commit  no  offense  against  the 
laws;  and  in  case  their  conduct  should  render  them  sus- 
pected, and  their  respective  Governments  should  think  proper 
to  order  them  to  remove,  the  term  of  twelve  months  from  the 
publication  of  the  order  shall  be  allowed  them  for  that 
purpose,  to  remove  with  their  families,  effects,  and  property." 
This  custom  of  allowing  enemy  subjects  to  remain  during 
good  behavior  has  become  common,  but  can  hardly  be  called 
a  rule  of  international  law.  Persons  thus  allowed  to  remain 
are  generally  treated  as  neutrals,  though  in  the  case  of 
Alcinous  V.  Nigreu  i  it  was  held  that  an  enemy  subject,  resid- 
ing in  England  without  a  license,  could  not  maintain  an 
action  for  breach  of  contract,  though  the  contract  which  had 
been  entered  into  before  the  war  was  valid  and  might  be 
enforced  when  peace  was  restored. 

'  4  Ellis  and  Blackburn's  Reports,  217. 


OUTLINE  OF  CHAPTER  XVIII 
STATUS   OF   PROPERTY   ON  LAND 

104.  PUBLIC    PROPERTY   OF   THE    ENEMY. 

(a)  Early  practice. 

(b)  Provisions  of  the  Hague  Conference. 

105.  REAL  PROPERTY  OF  ENEMY  SUBJECTS. 

106.  PERSONAL  PROPERTY  OF  ENEMY  SUBJECTS. 

(a)  Movable  property  now  exempted  as  far  as  possible. 

(1)  Stock  in  the  public  debt  wholly  exempt. 

(b)  Contributions. 

(c)  Requisitions. 

(d)  Foraging. 

(e)  Booty. 


246 


CHAPTER  XVIII 
STATUS   OF   PROPERTY   ON   LAND 

104.     Public  Property  of  the  Enemy 

(a)  Formerly  the  public  property  of  the  enemy,  whatever 
its  nature,  was  regarded  as  hostile,  and  liable  to  seizure. 
Practice  of  modern  times  has  gradually  become 
less  extreme,  and  the  attitude  of  the  powers  in 
restoring  the  works  of  art  which  Napoleon  had  brought  to 
Paris  shows  the  sentiment  early  in  the  nineteenth  century. 
The  practice  in  regard  to  public  property  of  the  enemy  has 
now  become  fairly  defined. 

The  public  property  of  one  belligerent  state  within  the 
territory  of  the  other  at  the  outbreak  of  war,  if  real  prop- 
erty, may  be  administered  during  the  war  for  the  benefit 
of  the  local  state;  if  movable,  it  is  liable  to  confiscation. 
Works  of  art,  scientific  and  educational  property,  and  the 
like  are,  however,  exempt.^  The  Treaty  of  August  20,  1890, 
between  Great  Britain  and  France,  exempts  public  vessels 
employed  in  the  postal  service. 

(6)  In  case  one  belligerent  by  military  occupation  acquires 
Provisions  of  authority  over  territory  formerly  within  the 
the  Hague  jurisdiction  of  the  other,  the  rules  of  the  Hague 
Conference.        Conference  of  1907  provide  as  foUows:— 

"  Art.  53.  An  army  of  occupation  can  only  take  possession 
of  the  cash,  funds,  and  realizable  securities  belonging  strictly 
to  the  State,  depots  of  arms,  means  of  transport,  stores  and 

1  Appendix,  pp.  356,  416,  419. 

247 


248  INTERNATIONAL  LAW 

supplies,  and,  generally,  all  movable  property  of  the  State 
which  may  be  used  for  military  operations. 

"  All  appUances,  whether  on  land,  at  sea,  or  in  the  air,  adapted 
for  the  transmission  of  news,  or  for  the  transport  of  persons  or 
things,  apart  from  cases  governed  by  maritime  law,  depots  of 
arms  and,  generally,  all  kinds  of  war  material,  even  though  be- 
longing to  private  persons,  may  be  seized,  but  they  must  be  re- 
stored at  the  conclusion  of  peace,  and  indemnities  paid  for  them. 

"Art.  54.  Submarine  cables  connecting  an  occupied  terri- 
tory with  a  neutral  territory  shall  not  be  seized  or  destroyed 
except  in  the  case  of  absolute  necessity.  They  must  likewise 
be  restored  and  compensation  fixed  when  peace  is  made. 

"Art,  55.  The  occupying  State  shall  be  regarded  only  as 
administrator  and  usufructuary  of  public  buildings,  real  estate, 
forests,  and  agricultural  works  belonging  to  the  hostile  State, 
and  situated  in  the  occupied  country.  It  must  protect  the 
capital  of  these  properties,  and  administer  it  according  to  the 
rules  of  usufruct. 

"Art.  56.  The  property  of  communes,  that  of  religious, 
charitable,  and  educational  institutions,  and  those  of  arts  and 
science,  even  when  State  property,  shall  be  treated  as  private 
property. 

"  All  seizure  of,  and  destruction,  or  intentional  damage  done 
to  such  institutions,  to  historical  monuments,  works  of  art  or 
science,  is  prohibited,  and  should  be  made  the  subject  of 
proceedings."  ^ 

105.     Real  Property  of  Enemy  Subjects 

The  real  property  of  the  subject  of  one  belligerent  situated 
within  the  territory  of  the  other  belligerent  was  in  early 
times  appropriated  by  the  state;  later  practice  administered 
it  (luring  the  war,  for  the  benefit  of  the  state;  but  at  present 
it  is  treated  as  the  real  property  of  any  non-hostile  foreigner. 

It  is  generally  conceded  that  real  property  of  the  subjects 
of  either  state  is  unaffected  by  hostile  occupation  by  the 

'  Appendix,  p.  419. 


STATUS  OF  PROPERTY  ON  LAND  249 

forces  of  the  other  state,  except  so  far  as  the  necessities  of 
warfare  may  require.^ 

106.     Personal  Property  of  Enemy  Subjects 

(a)  The  movable  property  of  the  subject  of  one  of  the 
belUgerent  states  in  the  territory  of  the  other  belligerent 
state  was  until  comparatively  recent  times  appropriated.  In 
the  case  of  Brown  v.  United  States,^  in  1814,  the  Supreme 
Court  held  that  the  "existence  of  war  gave  the  right  to  con- 
fiscate, yet  did  not  of  itself  and  without  more,  operate  as 
a  confiscation  of  the  property  of  an  enemy,"  though  it  further 
held  that  the  court  could  not  condemn  such  property  unless 
there  was  a  legislative  act  authorizing  the  confiscation.  Many 
modern  treaties  provide  that  in  case  of  war  between  the 
parties  to  the  treaties  subjects  of  each  state  may  remain  in 
the  other,  "and  shall  be  respected  and  maintained  in  the 
full  and  undisturbed  enjoyment  of  their  personal  liberty 
and  property  so  long  as  they  conduct  themselves  peaceably 
and  properly,  and  commit  no  offense  against  the  laws."  ^ 
The  most  recent  practice  has  been  to  exempt  personal 
property  of  the  subject  of  one  belligerent  state  from  all 
molestation,  even  though  it  was  within  the  territory  of  the 
other  at  the  outbreak  of  war.  Of  course,  such  property  is 
liable  to  the  taxes,  etc.,  imposed  upon  others  not  enemy 
subjects. 

In  case  of  hostile  occupation,  the  Hague  Conference  of 
1907  summarized  the  rules  as  follows: — 

"Art.  46.  .  .  .  Private  property  cannot  be  confiscated. 
"Art.  47.     Pillage  is  formally  prohibited. 
"Art.  48.     If,  in  the  territory  occupied,  the  occupant  col- 
lects the  taxes,  dues,  and  tolls  imposed  for  the  benefit  of  the 

>  Appendix,  pp.  355,  419.  '  8  Cr.,  110. 

'  See  Index  U.  S.  Treaties,  "Reciprocal  Privileges  of  Citizens." 


250  INTERNATIONAL  LAW 

State,  he  shall  do  so,  as  far  as  possible,  in  accordance  with  the 
rules  in  existence  and  the  assessment  in  force.  .  .  . 

"Art.  49.  If  .  ,  .  the  occupant  levies  other  money  taxes 
in  the  occupied  territory,  this  can  only  be  for  military  necessi- 
ties or  the  administration  of  such  territory." 

Articles  50,  51,  52,  provide  that  burdens  due  to  military 
occupation  shall  be  as  equable  as  possible,  and  that  payment 
shall  be  made  for  requisitions.^ 

The  practice  now  is  to  exempt  private  property  so  far  as 
possible  from  the  consequences  of  hostile  occupation,  and 
to  take  it  only  on  the  ground  of  reasonable  military  necessity .^ 

With  regard  to  one  particular  form  of  property,  modern 
commercial  relations  as  influenced  by  state  credit  have  been 
more  powerful  than  theory  or  country.  The  stock  in  the 
public  debt  held  by  an  enemy  subject  is  wholly  exempt  from 
seizure  or  sequestration,  and  practice  even  demands  that 
interest  must  be  paid  to  enemy  subjects  during  the  continu- 
ance of  the  war.^ 

In  case  of  belligerent  occupation,  contributions,  requisi- 
tions, and  other  methods  are  sometimes  resorted  to  in  supply- 
ing military  needs. 

{b)  Contributions  are  money  exactions  in  excess  of  taxes.* 
Contributions  should  be  levied  only  by  the  general-in-chief. 

(c)  Requisitions  consist  in  payment  in  kind  of  such  arti- 
cles as  are  of  use  for  the  occupying  forces,  as  food,  clothes, 
horses,  boats,  compulsory  labor,  etc.  Requisitions  may  be 
levied  by  subordinate  commanders  when  there  is  immediate 
need,  otherwise  by  superior  officers.  Such  requisitions  should 
not  be  in  excess  of  need  or  of  the  resources  of  the  region. 

Receipts  for  the  value  of  both  contributions  and  requisi- 
tions should  be  given,  in  order  that  subsequent  impositions 
may  not  })e  made  without  due  knowledge,  and  in  order  that 

'  Appendix,  p.  418.  » Appendix,  pp.  355,  418. 

Lawrence,  §  198.  •  7  Moore,  §  1149. 


STATUS  OF  PROPERTY  ON  LAND  251 

the  sufferers   may   obtain   due   reparation   from   their   own 
state  on  the  conclusion  of  peace. 

In  naval  warfare  ''requisitions  for  provisions  or  supplies 
for  the  immediate  use  of  the  naval  force  before  the  place  in 
question"  ^  are  allowed.  Such  requisitions  may  be  enforced 
by  bombardment  if  necessary.  Contributions,  however,  can- 
not be  exacted  unless  after  actual  and  complete  belligerent 
occupation,  as  by  land  forces.  Contributions  in  the  form  of 
ransom  to  escape  bombardment  cannot  be  levied,  as  in  such 
cases  occupation  is  not  a  fact.^ 

(d)  Foraging  is  resorted  to  in  cases  where  lack  of  time 
makes  it  inconvenient  to  obtain  supplies  by  the  usual  proc- 
ess of  requisition,  and  consists  in  the  actual  taking  of  pro- 
visions for  men  and  animals  by  the  troops  themselves. 

(e)  Booty  commonly  applies  to  military  supplies  seized 
from  the  enemy.  In  a  more  general  sense  it  applies  to  all 
property  of  the  enemy  which  is  susceptible  of  appropriation. 
Such  property  passes  to  the  state  of  the  captor,  and  its  dis- 
position should  be  determined  by  that  state. 

'-  Scott,  "  Conferences,"  p.  262.  ^  Ibid. 


OUTLINE  OF  CHAPTER  XIX 
STATUS  OF  PROPERTY  AT  SEA 

107.  VESSELS. 

(a)  Status  of  public  vessels  of  a  belligerent. 

(b)  Status  of  private  vessels  of  a  belligerent. 

(1)  Provisions  of  the  Hague  Conference. 

(c)  Transfer  of  enemy  vessel  to  a  neutral  &ag, 

108.  GOODS. 

109.  SUBMARINE   AND   WIRELESS   TELEGRAPH. 

(a)  Treatment  of  submarine  telegraphic  cables  in  time  of  war. 

(b)  Treatment  of  wireless  telegraph  in  time  of  war. 


252 


CHAPTER  XIX 
STATUS  OF  PROPERTY  AT  SEA 

107.    Vessels 

Vessels  may  be  classed  as  public,  belonging  to  the  state, 
and  private,  belonging  to  citizens  of  the  state. 

(a)  Public  vessels  of  a  belligerent  are  liable  to  capture 

status  of  public  ^^  ^^^  P^''^  ^^  ^^^  except  in  territorial  waters 
vessels  of  a        of  a  neutral.     The  following  public  vessels  are, 
e  hgerent.        however,  exempt  from  capture  unless  they  per- 
form some  hostile  act: — 

(1)  Cartel   ships  commissioned  for  the  exchange  of 
prisoners. 

(2)  Vessels  engaged  exclusively  in  non-hostile  scien- 
tific work  and  in  exploration. ^ 

(3)  Hospital  ships,  properly  designated  and  engaged 
exclusively  in  the  care  of  the  sick  and  wounded.^ 

(6)  Private  vessels  of  the  enemy  are  liable  to  capture  in 

status  of  pri-      ^^y  P*^^*  ^^  ^^^  except  in  territorial  waters  of 
vate  vessels  of   a  neutral.     The  following  private  vessels  when 
e  igerent.      innocently    employed    are,    however,    exempt 
from  capture: — 

(1)  Cartel  ships. 

(2)  Vessels  engaged  in  explorations  and  scientific  work. 

(3)  Hospital  ships. 

(4)  Small  coast  fishing  vessels.     This  exemption  is  not 
allowed  to  deep-sea  fishing  vessels.^ 

*  Appendix,  p.  432.  ^  Appendix,  p.  426. 

'Appendix,  p.  432;  Paquete  Habana,  175  U.  S.,  677. 

253 


254  INTERNATIONAL  LAW 

(5)  Small  boats  employed  in  local  trade. 

(6)  Vessels  of  one  of  the  belligerents  in  the  ports  of 
the  other  at  the  outbreak  of  hostilities  were  more  often 
allowed  a  specified  time  in  which  to  take  cargo  and  de- 
part. In  the  war  between  the  United  States  and  Spain, 
1898,  Spanish  vessels  were  allowed  thirty  days  in  which 
to  depart  and  were  to  be  exempt  on  homeward  voyage. 
Vessels  sailing  from  Spain  for  the  United  States  ports 
before  the  declaration  of  war  were  to  be  allowed  to 
continue  their  voyages.  ^  Spain  allowed  vessels  of  the 
United  States  five  days  in  which  to  depart  .^  It  did 
not  prohibit  the  capture  of  such  ships  after  departure. 
No  provision  was  made  for  vessels  sailing  from  the 
United  States  for  Spanish  ports  before  the  declara- 
tion of  war. 

The  Hague  Convention  of  1907  relative  to  the  Status 
of  Enemy  Merchant  Ships  at  the  Outbreak  of  Hostili- 
Provisions  of  ^^^^  provided  for  ''a  reasonable  number  of 
the  Hag:ue  days  of  grace"  for  vessels  in  an  enemy  port 
on  erence.  ^^  ^j^^  outbreak  of  hostilities  or  entering 
an  enemy  port  without  knowledge  of  the  hostilities. 
Enemy  merchant  vessels  on  the  sea  ignorant  of  the  out- 
break of  hostilities  may  be  detained  without  compensa- 
tion or  requisitioned  or  even  destroyed  on  payment  of 
compensation,  due  care  being  taken  for  security  of  per- 
sons and  papers  on  board. 

These  exemptions  do  not  apply  to  '' merchant  ships 
whose  build  shows  that  they  are  intended  for  conversion 
into  war-ships."  ^ 

In  the  Prize  Law  of  Japan,  1894,  the  following  exemp- 
tions of  enemy's  vessels  are  made : — 

"  (1)  Boats  engaged  in  coast  fisheries. 

'  Proclamation  of  April  26,  1898.  '  Decree  of  April  23,  1898. 

'  Appendix,  p.  425. 


STATUS  OF  PROPERTY  AT  SEA  255 

"  (2)  Ships  engaged  exclusively  on  a  voyage  of  scien- 
tific discovery,  philanthropy,  or  religious  mission. 

"  (3)  Vessels  actually  engaged  in  cartel  service,  and 
this  even  when  they  actually  have  prisoners  on  board. 
"  (4)  Boats  belonging  to  lighthouses."  ^ 
(c)  The  transfer  of  an  enemy  vessel  to  a  neutral  flag  was 
sometimes  resorted  to  as  a  means  of  changing  the  status  of 
private  vessels  in  anticipation  of  the  outbreak 
enernVve^'ssei     ^i  War.     In  order  to  remove  uncertainty  and  to 
to  a  neutral       sccure  as  great  freedom  of  commerce  as  possible 
^^^'  without   unduly   restricting   belligerent  rights, 

the  Declaration  of  London  of  1909  provides : 

"Art.  55.  The  transfer  of  an  enemy  vessel  to  a  neutral 
flag,  effected  before  the  opening  of  hostilities,  is  valid,  unless 
it  is  proved  that  such  transfer  was  made  in  order  to  evade 
the  consequences  which  the  enemy  character  of  the  vessel 
would  involve.  There  is,  however,  a  presumption  that  the 
transfer  is  void  if  the  bill  of  sale  is  not  on  board  in  case 
the  vessel  has  lost  her  belligerent  nationahty  less  than  sixty 
days  before  the  opening  of  hostihties.  Proof  to  the  contrary 
is  admitted. 

"  There  is  absolute  presumption  of  the  vaHdity  of  a  transfer 
effected  more  than  thirty  days  before  the  opening  of  hostilities 
if  it  is  absolute,  complete,  conforms  to  the  laws  of  the  countries 
concerned,  and  if  its  effect  is  such  that  the  control  of  the  vessel 
and  the  profits  of  her  employment  do  not  remain  in  the  same 
hands  as  before  the  transfer.  If,  however,  the  vessel  lost  her 
belligerent  nationahty  less  than  sixty  days  before  the  opening 
of  hostilities,  and  if  the  bill  of  sale  is  not  on  board  the  capture 
of  the  vessel  would  not  give  a  right  to  compensation."  ^ 

108.     Goods 

In  general  all  public  goods  found  upon  the  seas  outside  of 
neutral   jurisdiction   are  liable  to   capture.     Works   of  art, 
'  Takahashi,  Chino-Japanese,  p.  178.  *  Appendix,  p.  460. 


256  INTERNATIONAL  LAW 

historical  and  scientific  collections  are  sometimes  held  to  be 
exempt,  and  probably  would  not  be  captm-ed. 

Private  hostile  property  at  sea  and  not  under  the  flag  of 
a  neutral  is  liable  to  capture  unless  such  property  consist 
of  vessels,  etc.,  exempt  under  §  107,  (b). 

Contraband  of  war  under  any  flag,  outside  of  neutral 
territory,  and  destined  for  the  enemy  forces,  is  liable  to  cap- 
ture. 

Neutral  goods  in  the  act  of  violating  an  established  block- 
ade may  be  captured. 

Previous  to  the  Treaty  of  Paris  in  1856  great  diversity  in 
the  treatment  of  maritime  commerce  prevailed.  This  treaty 
provided  that: — 

"The  neutral  flag  covers  enemy's  goods,  with  the  exception 
of  contraband  of  war,"  and 

''Neutral  goods,  with  the  exception  of  contraband  of  war, 
are  not  liable  to  capture  under  the  enemy's  flag."  ^ 

Nearly  all  the  important  states  of  the  world  acceded  to 
these  provisions  except  the  United  States  and  Spain,  and 
both  of  these  powers  formafly  proclaimed  that  they  would 
observe  these  provisions  in  the  war  of  1898.^ 

The  London  Naval  Conference  of  1908-1909  agreed  upon 
twenty-three  articles  relating  to  contraband  of  war.  The 
Declaration  of  London,  made  at  the  conclusion  of  this  Con- 
ference, mentions  these  articles,  and  defines  more  fully  than 
hitherto  the  status  of  goods  upon  the  sea  in  time  of  war.^ 

109.     Submarine  and  Wireless  Telegraph 

(a)  The  position  of  submarine  telegraphic  cables  has  in 
recent  years  become  of  great  importance.  Such  a  cable 
easily  becomes  an  instrument  of  value  in  carrying  on  the 

'  Appendix,  p.  370. 

'  U.  S.  Procl.imation,  April  26,  1898;  Spain,  Decree  of  April  23,  1898. 

*  Appendix,  pp.  453^58, 


STATUS  OF  PROPERTY  AT  SEA  257 

operations  of  war.  A  convention  of  representatives  of  the 
important  states  of  the  world  met  at  Paris  in  1884,  and 
Submarine  agreed  upon  rules  for  the  protection  of  sub- 
teiegraphic  marine  cables.^  Article  XV  of  this  conven- 
cabies.  ^^^^   announces  that   "It   is   understood  that 

the  stipulations  of  this  convention  shall  in  no  wise  affect 
the  liberty  of  action  of  belligerents." 

The  treatment  of  submarine  cables  in  time  of  war  as  deter- 
mined by  opinions,  proclamations,  etc.,  seems  to  establish 
that 

(1)  Submarine  telegraphic  cables  between  points  within 
the  territory  of  an  enemy  or  between  a  point  within  the  ter- 
ritory of  one  belligerent  and  a  point  within  the  territory  of 
the  other  belligerent  are  liable  to  such  treatment  as  the 
exigencies  of  war  may  determine. 

(2)  Submarine  telegraphic  cables  between  a  point  within 
the  territory  of  an  enemy  and  a  point  within  the  territory  of 
a  neutral  are  liable  to  interruption  within  the  enemy's  juris- 
diction. 

(3)  Submarine  telegraphic  cables  between  a  point  within 
the  territory  of  an  enemy  and  a  point  within  the  territory 
of  a  neutral  are  liable  to  interruption  outside  of  neutral  juris- 
diction if  the  cables  are  used  for  war  purposes. 

(4)  Submarine  telegraphic  cables  between  points  within 
neutral  territories  are  not  liable  to  interruption. 

Submarine  telegraphic  cables  between  a  point  within  the 
territory  of  an  enemy  and  a  point  within  the  territory  of  a 
neutral  may  be  liable  to  interruption  on  the  high  seas  if  used 
for  war  purposes. ^    It  is  generally  held  that  such  interruption 

»  Treaties  U.  S.,  p.  1176  ff. 

=>  Captain  C.  H.  Stockton,  "Submarine  Telegraph  Cables  in  Time  of 
War,"  Proceed.  U.  S.  Naval  Inst.,  Vol.  XXIV,  p.  451. 

See  discussion,  Wilson,  "Submarine  Telegraphic  Cables  in  their  Inter- 
national Relations,"  Lectures  U.  S.  Naval  War  College,  1901;  also  "The 
Report  of  the  Inter- Departmental  Committee  on  Cable  Communication" 
to  British  Parliament,  March,  1902. 


258  INTERNATIONAL  LAW 

renders  the  belligerent  interrupting  the  cable  service,  to  some 
extent  liable. 

The  Convention  of  The  Hague  in  1907  respecting  the  Cus- 
toms and  Laws  of  War  on  Land  provided : 

"Art.  54.  Submarine  cables  connecting  an  occupied  ter- 
ritory with  a  neutral  territory  shall  not  be  seized  or  destroyed 
except  in  the  case  of  absolute  necessity.  They  must  likewise 
be  restored,  and  compensation  fixed  when  peace  is  made." 

(6)  The  wireless  telegraph  has  also  become  in  recent  years 
an  important  factor  in  war.     There  has  been  an  attempt  to 

extend  to  wireless  communication  analogous 
tei*e^'r\  rules  to  those  applied  to  submarine  cables,  but 

these  are  not  sufficient  in  all  cases. ^  Under  the 
Berlin  Convention  of  November  3,  1906,  states  assumed  a 
measure  of  control  over  wireless  telegraphy.  A  correspond- 
ing responsibility  must  be  assumed.  Russia  on  April  15, 
1904,  declared  in  a  note  addressed  to  the  foreign  states 

"that  the  lieutenant  of  His  Imperial  Majesty  in  the  Far  East 
has  just  made  the  following  declaration: 

"'In  case  neutral  vessels,  having  on  board  correspondents 
who  may  communicate  war  news  to  the  enemy  by  means  of 
improved  apparatus  not  yet  provided  for  by  existing  conven- 
tions, should  be  arrested  off  the  coast  of  Kwantung  or  within 
the  zone  of  operations  of  the  Russian  fleet,  such  correspondents 
shall  be  regarded  as  spies,  and  the  vessels  provided  with  wire- 
less telegraph  apparatus  shall  be  seized  as  lawful  prize.' " 

Objection  was  immediately  made  to  the  treatment  of  cor- 
respondents as  spies,  but  no  objection  was  made  to  the  sei- 
zure of  the  wireless  apparatus  as  prize. 

The  Hague  Convention  of  1907  respecting  Rights  and 
Duties  of  Neutral  Powers  also  provides  that: 

'  Scholz,  "Drahtlose  Telegraphic  und  Neutralitat,"  43. 


STATUS  OF  PROPERTY  AT  SEA  259 

"Art.  III.     Belligerents  are  likewise  forbidden  to: 

"  (a)  Erect  on  the  territory  of  a  neutral  Power  a  wireless 
telegraphy  station  or  other  apparatus  for  the  purpose  of  com- 
municating with  belligerent  forces  on  land  or  sea; 

"  (6)  Use  any  installation  of  this  kind  established  by  them 
before  the  war  on  the  territory  of  a  neutral  Power  for  purely 
military  purposes,  and  which  has  not  been  opened  for  the  serv- 
ice of  public  messages.  .  .  . 

"Art.  VIII.  A  neutral  Power  is  not  called  upon  to  forbid 
or  restrict  the  use  on  behalf  of  the  belligerents  of  telegraph  or 
telephone  cables  or  of  wireless  telegraphy  apparatus  belonging 
to  it  or  to  companies  or  private  individuals."  ^ 

While  the  law  in  regard  to  wireless  communication  is  not 
settled  yet  certain  principles  seem  to  be  recognized. 

1.  A  belligerent  may  regulate  or  prohibit  the  use  of  wire- 
less telegraph  within  the  area  of  operations. 

2.  Unneutral  use  of  wireless  telegraph  on  board  a  neutral 
vessel  makes  the  vessel  liable  to  the  penalty  for  unneutral 
service. 

3.  The  wireless  apparatus  is  similarly  liable  to  penalty,  i.e. 
it  may  be  confiscated  or  sequestrated. 

*  Appendix,  pp.  420,  421 ;  see  also  International  Law  Situations,  U.  S. 
Naval  War  College,  1907,  pp.  138-176. 


OUTLINE  OF  CHAPTER  XX 
CONDUCT   OF   HOSTILITIES 

110.  BELLIGERENT   OCCUPATION. 

(a)  The  sovereignty  of  the  occupied  territory. 

(b)  The  local  laws  of  the  invaded  state. 

(c)  Public  and  private  property. 

111.  FORBIDDEN   METHODS  IN  THE  CONDUCT  OP  HOSTILITIES. 

(a)  Declarations  of  the  Hague  Conferences  on  this  subject. 

112.  PRIVATEERS. 

113.  VOLUNTARY   AND   AUXILIARY   NAVY. 

(a)  The  organization  of  a  volunteer  navy. 

(b)  The  use  of  aiixiliary  vessels. 

114.  CAPTURE    AND    RANSOM. 

(a)  The  exemption  from  capture  of  private  property  at  sea. 

(b)  When  capture  is  complete. 

(c)  The  captiu-ed  vessel  as  a  prize. 

(d)  Practice  in  regard  to  ransom. 

115.  POSTLIMINIUM. 

(a)  The  jus  postliminium  defined. 

(b)  Restoration  of  property  or  territory. 

(c)  Rules  as  to  restoration  of  ships. 

116.  PRISONERS    AND    THEIR   TREATMENT. 

(a)  Who  may  be  made  prisoners. 

(b)  Refusal  of  quarter  and  liability  to  retaliation. 

(c)  The  practice  of  internment. 

(d)  Employment  of  prisoners  of  war. 

(e)  Exchange  of  prisoners  a  voluntary  act. 

(f)  Release  on  parole. 

fg)  Treatment  of  the  sick  and  wounded. 

(h)  Bureau  of  Information  established  by  the  Hague  Convention. 

117.  NON  HOSTILE  RELATIONS  OF  BELLIGERENTS. 

(a)  Flag  of  truce. 

(b)  Cartels. 

(c)  Passports,  safe-conducts,  and  safeguards. 

(d)  License  to  trade. 

(e)  Suspension  of  hostilities,  truce,  armistice. 

(f)  Capitulation. 

260 


CHAPTER  XX  1 
CONDUCT   OF   HOSTILITIES 

HO.     Belligerent  Occupation 

This  was  defined  by  the  Institute  of  International  Law, 
at  Oxford  in  1880,  as  follows : — 

"  A  territory  is  considered  to  be  occupied,  when,  as  the  result 
of  its  invasion  by  an  enemy's  force,  the  State  to  which  it  be- 
longs has  ceased,  in  fact,  to  exercise  its  ordinary  authority 
within  it,  and  the  invading  State  is  alone  in  a  position  to  main- 
tain order.  The  extent  and  duration  of  the  occupation  are  de- 
termined by  the  limits  of  space  and  time  within  which  this 
state  of  things  exists." 

In  the  Hague  Convention  of  1907  it  is  stated  that: 

"Art.  XLII.  Territory  is  considered  occupied  when  it  is 
actually  placed  under  the  authority  of  the  hostile  army. 

"The  occupation  applies  only  to  the  territory  where  such 
authority  is  estabhshed,  and  in  a  position  to  assert  itself. 

"Art.  XLIII.  The  authority  of  the  legitimate  power  hav- 
ing actually  passed  into  the  hands  of  the  occupant,  the  latter 
shall  take  all  steps  in  his  power  to  reestablish,  and  insure, 
as  far  as  possible,  pubUc  order  and  safety,  while  respecting, 
unless  absolutely  prevented,  the  laws  in  force  in  the  country."  ^ 

(a)  The  sovereignty  of  the  occupied  territory  does  not 
pass  to  the  occupying  state,  but  only  the  right  to  exercise 

'  For  the  discussion  of  the  laws  and  customs  of  war,  at    the  Hague 
Peace  Conference,  see  Holls,  134  et  seq.,  and  Higgins,  p.  256  et  seq. 
*  See  Appendix,  pp.  417-418. 

261 


262  INTERNATIONAL  LAW 

the  authority  necessary  for  safety  and  operations  of   war. 

Belligerent  occupation  was  formerly  held  to  carry  with  it 

the  right  to  full  disposition   of    whatever  ap- 

The  sovereign-  »  '■  t\      •  ,x.  • 

ty  of  occupied     pertained  to  the  territory.      During  the  nme- 
territory.  tecnth  ccutury  it  was  given  a  clearer  definition. 

Belligerent  occupation  is  a  fact  impairing  the  usual  jurisdic- 
tion, but  it  does  not  transfer  sovereignty. 

(6)  In  general  the  civil  laws  of  the  mvaded  state  continue 

in  force  in  so  far  as  they  do  not  affect  the  hostile  occupant 

unfavorably.     The    regular    judicial    tribunals 

Local  laws  of     continue  to  act  in  cases  not  affecting  the  mili- 

invaded  state.  »    i      •    •  •  m 

tary  occupation.  Administrative  omcers  con- 
tinue to  perform  their  functions  in  absence  of  orders  to  the 
contrary,  though  of  course  purely  political  officers  would  be 
limited  in  the  exercise  of  their  functions;  e.g.  registrars  of 
marriages,  births,  and  deaths  might  act  as  usual,  while  the 
authority  of  a  governor  might  be  suspended.  There  is  no 
doubt  that  the  freedom  of  the  press  cannot  be  claimed,  as  this 
might  bring  grave  consequences  upon  the  occupying  force. 

(c)  The  belligerent  occupant  may  destroy  or  appropriate 
public  property  which  may  have  a  hostile  purpose,  as  forts, 
Public  and  arms,  armories,  etc.  The  occupying  force  may 
private  cnjoy    the    income    from    the    public    sources, 

property.  Strictly  private  property  should  be  inviolable, 

except  so  far  as  the  necessity  of  war  requires  contrary  action. 

"Art.  LIII.  An  army  of  occupation  can  only  take  posses- 
sion of  cash,  funds,  and  reaUzable  securities  which  are  strictly 
the  property  of  the  State,  depots  of  arms,  means  of  transport, 
stores  and  supplies,  and,  generally,  all  movable  property  be- 
longing to  the  State  which  may  be  used  for  military  operations. 

"  All  ;ii)pliances,  whether  on  land,  at  sea,  or  in  the  air,  adapted 
for  the  transmission  of  news,  or  for  the  transport  of  persons  or 
things,  exclusive  of  cases  governed  by  naval  law,  depots  of 
arms,  and,  generally,  all  kinds  of  ammunition  of  war,  may  be 


CONDUCT  OF  HOSTILITIES  263 

seized,  even  if  they  belong  to  private  individuals,  but  must  be 
restored  and  compensation  fixed  when  peace  is  made."  ^ 

The  invader  is  bound  to  give  such  measure  of  protection 
to  the  inhabitants  of  the  occupied  territory  as  he  is  able.^ 

Belligerent  occupation  begins  when  an  invaded  territory 
is  effectively  held  by  a  military  force. 

111.     Forbidden  Methods 

In  the  conduct  of  hostilities  certain  methods  of  action 
and  certain  instruments  are  generally  forbidden. 

Deceit  involving  perfidy  is  forbidden.^  As  there  are  certain 
conventional  agreements  held  to  exist  even  between  enemies, 
violations  of  these  agreements  remove  from  the  violator  the 
protection  of  the  laws  of  war. 

On  land  it  is  not  permitted 

"(a)  To  employ  poison  or  poisoned  weapons; 

"  (h)  To  kill  or  wound  treacherously  individuals  belonging 
to  the  hostile  nation  or  army; 

"  (c)  To  kill  or  wound  an  enemy  who,  having  laid  down  his 
arms,  or  having  no  longer  means  of  defense,  has  surrendered  at 
discretion; 

"  (d)  To  declare  that  no  quarter  will  be  given; 

"  (e)  To  employ  arms,  projectiles,  or  material  calculated  to 
cause  unnecessary  suffering; 

"  (/)  To  make  improper  use  of  a  flag  of  truce,  of  the  national 
flag,  or  of  the  military  insignia  and  uniform  of  the  enemy,  as 
well  as  the  distinctive  badges  of  the  Geneva  Convention; 

"  (g)  To  destroy  or  seize  the  enemy's  property,  unless  such 
destruction  or  seizure  be  imperatively  demanded  by  the  neces- 
sities of  war; 

"  (h)  To  declare  abolished,  suspended,  or  inadmissible  in  a 
Court  of  law  the  rights  and  actions  of  the  nationals  of  the  hos- 
tile party. 

'  Appendix,  p.  419.  '  Appendix,  pp.  357,  418. 

'  Appendix,  p.  415. 


264  INTERNATIONAL  LAW 

"A  belligerent  is  likewise  forbidden  to  compel  the  nationals 
of  the  hostile  party  to  take  part  in  the  operations  of  war  di- 
rected against  their  own  country,  even  if  they  were  in  the 
belligerent's  service  before  the  commencement  of  war."  ^ 

"The  bombardment  by  naval  forces  of  undefended  ports, 
towns,  villages,  dwellings,  or  buildings  is  forbidden. 

"A  place  cannot  be  bombarded  solely  because  automatic 
submarine  contact  mines  are  anchored  off  the  harbour."  2 

Undefended  towns  may  be  bombarded  if  they  refuse  rea- 
sonable requisitions  for  supplies  necessary  for  the  immediate 
use  of  the  naval  force  but  not  for  failure  to  make  money 
contributions.^  Provisions  for  protection  of  non-military 
buildings,  monuments,  etc.,  have  been  made.^ 

While  the  use  of  false  colors  in  naval  war  is  not  yet  for- 
bidden, when  summoning  a  vessel  to  lie  to,  or  before  firing 
a  gun  in  action,  the  national  colors  must  be  displayed.  The 
use  of  the  conventional  flag  of  truce,  a  white  flag,  or  of  the 
hospital  flag,  red  cross  on  white  ground,  to  cover  military 
operations  or  supplies  is  forbidden. ^  Stratagems,  such  as 
feigned  attacks,  ambush,  and  deceit  not  involving  perfidy 
are  allowed.^ 

By  the  declaration  of  the  Hague  Conference  of  1899, 
Declarations  of  "  ^^e  contracting  parties  agree  to  prohibit,  for 
the  Hague  a  term  of  five  years,  the  launching  of  projec- 
tiles and  explosives  from  balloons  or  by  other 
new  methods  of  a  similar  nature."  ^ 

The  declaration  was  renewed  at  the  Hague  Conference  of 
1907  to  extend  to  the  close  of  the  Third  Conference. 

There  was  also  an  agreement  in  1899  "to  abstain  from  the 
use  of  bullets  which  expand  or  flatten  easily  in  the  human 
body." 


Apppnrlix.  p.  415.  2  Scott,  "  Conferences,"  p.  260. 

IhuL,  p.  2<)1.  'Appendix,  pp.  415-416. 

'  Appendix,  i)p.  415,  430.  "Appendix,  p.  415. 

'  llolls,  "Hague  Peace  Conference,"  93  et  seq.,  455. 


CONDUCT  OF  HOSTILITIES  265 

The  Hague  Conference  of  1899  also  declared  against  the 
"use  of  projectiles,  the  object  of  which  is  the  diffusion  of 
asphyxiating  or  deleterious  gases."  ^ 

The  Hague  Convention  of  1907  provided: 

"Art.  I.     It  is  forbidden: 

"1.  To  lay  unanchored  automatic  contact  mines,  except 
when  they  are  so  constructed  as  to  become  harmless  one  hour 
at  most  after  the  person  who  laid  them  ceases  to  control  them; 

"2.  To  lay  anchored  automatic  contact  mines  which  do  not 
become  harmless  as  soon  as  they  have  broken  loose  from  their 
moorings ; 

"3.  To  use  torpedoes  which  do  not  become  harmless  when 
they  have  missed  their  mark. 

"Art.  IL  It  is  forbidden  to  lay  automatic  contact  mines 
off  the  coast  and  ports  of  the  enemy,  with  the  sole  object  of 
intercepting  commercial  shipping."  ^ 

Retaliation,  devastation,  refusal  of  quarter,  and  other 
severe  methods  once  resorted  to  are  now  generally  forbidden, 
except  as  punishment  for  violation  of  the  laws  of  war. 

112.     Privateers 

A  private  armed  vessel  owned  and  manned  by  private  per- 
sons and  under  a  state  commission  called  a  ''letter  of 
marque,"  ^  is  a  privateer. 

This  method  of  carrying  on  hostilities  has  gradually  met 
with  less  and  less  favor. ^  From  the  early  days  of  the  fifteenth 
century  neutrals  were  given  commissions.  Toward  the  end 
of  the  eighteenth  century  treaties  and  domestic  laws  gradually 
provided  against  this  practice,  though  letters  of  marque  were 
offered  to  foreigners  by  Mexico  in  1845,  and  by  the  Confed- 
erate States  in  1861-1865.     These  were  not  accepted,  how- 

'See  Holls,  "Hague  Peace  Conference,"  93  et  seq.,  461.  The  United 
States  did  not  sign  this  declaration.  ^ Scott,  "Conferences,"  p.  2.'")f. 

'  For  form,  see  United  States  v.  Baker,  5  Blatchford,  6;   2  Halleck,  1  IT. 

•See  article  of  Dr.  Stark  on  "Privateering,"  in  Columbia  Universil-' 
Publications  (1897),  Vol.  VIII,  No.  3. 


266  INTERNATIONAL  LAW 

ever,  as  such  action  had  then  come  to  be  regarded  as  piracy 
by  many  states.  Privateering  of  any  kind,  as  Kent  said, 
"under  all  the  restrictions  which  have  been  adopted,  is  very 
liable  to  abuse.  The  object  is  not  fame  or  chivalric  warfare, 
but  plunder  and  profit.  The  discipline  of  the  crews  is  not 
apt  to  be  of  the  highest  order,  and  privateers  are  often  guilty 
of  enormous  excesses,  and  become  the  scourge  of  neutral 
commerce.  .  .  .  Under  the  best  regulations,  the  business 
tends  to  blunt  the  sense  of  private  right,  and  to  nourish  a 
lawless  and  fierce  spirit  of  rapacity."  ^  The  granting  of  let- 
ters of  marque  to  private  persons  of  either  of  the  belligerent 
states  was  attended  with  grave  evils,  and,  by  the  Declara- 
tion of  Paris,  1856, "  Privateering  is,  and  remains,  abolished."  2 
This  declaration  was  agreed  to  by  the  leading  states  of  the 
world,  with  the  exception  of  the  United  States,  Spain,  Mexico, 
Venezuela,  and  China.  In  the  Spanish-American  War  of 
1898  the  United  States  formally  announced  that  it  would 
not  resort  to  privateering.^  Spain,  while  maintaining  her 
right  to  issue  letters  of  marque,  declared  the  intention  to 
organize  for  the  present  (May  3,  1898)  a  service  of  "auxiliary 
cruisers  of  the  navy."  The  importance  of  the  subject  of 
privateering  is  now  largely  historical,  as  it  is  doubtful  whether 
any  civilized  state  would  resort  to  this  method  of  carrying 
on  maritime  war. 

113.     Voluntary  and  Auxiliary  Navy 

(a)  The  relationship  of  private  vessels  to  the  state  in 
time  of  war,  which  had  been  settled  by  the  Declaration  of 
The  organiza-  Paris  in  1856,  was  again  made  an  issue  by  the 
tion  of  a  voiun-  act  of  Prussia  in  the  Franco-German  War.  By 
teer  navy.  ^  decree  of  July  24,  1870,  the  owners  of  vessels 
were  invited  to  equip  them  for  war  and  place  them  under 

»  1  Kent  Com.,  97.  »  Appendix,  p.  379. 

*  Proclamations  and  Decrees  (April  25,  1898),  p.  77. 


CONDUCT  OF  HOSTILITIES  267 

the  naval  discipline.  The  officers  and  crews  were  to  be 
furnished  by  the  owners  of  the  vessels,  to  wear  naval  uniform, 
to  sail  under  the  North-German  flag,  to  take  oath  to  the 
articles  of  war,  and  to  receive  certain  premiums  for  capture 
or  destruction  of  the  enemy's  ships.  The  French  authorities 
complained  to  the  British  that  this  was  privateering  in  dis- 
guise and  a  violation  of  the  Declaration  of  Paris.  The  law 
officers  of  the  crown  declared  that  there  was  a  "substantial 
difference"  between  such  a  volunteer  navy  and  a  system  of 
privateering,  and  that  the  action  of  Prussia  was  not  contrary 
to  the  Declaration  of  Paris.  With  this  position  some  authori- 
ties agree,  while  others  dissent.^  The  weight  of  the  act  as 
a  precedent  is  less  on  account  of  the  fact  that  no  ships  of  this 
navy  ever  put  to  sea.  The  similar  plan  of  Greece  for  a 
volunteer  navy  in  1897  was  never  put  into  operation .2 

Russia,  in  view  of  possible  hostilities  with  England  in 
1877-1878,  accepted  the  offer  of  certain  citizens  to  incor- 
porate into  the  navy  during  the  war,  vessels  privately  pur- 
chased and  owned.  Vessels  of  this  character  are  still  num- 
bered in  the  ''volunteer  fleet,"  and  though  privately  owned 
and  managed  are,  since  1886,  under  the  Admiralty.  These 
vessels  may  easily  be  converted  into  cruisers,  and  are,  so  far 
as  possible,  favored  with  government  service.  There  seems 
to  be  little  question  as  to  the  propriety  of  such  a  relationship 
between  the  state  and  the  vessels  which  may  be  used  in  war. 

(6)  Still  less  open  to  objection  is  the  plan  adopted  by 
Great  Britain  in  1887  and  by  the  United  States  in  1892,  by 
The  use  of  which  these  governments,  through  agreements 
auxiliary  with  certain  of  their  great  steamship  lines,  can 

vesse  s.  y^^^^  ^^  purchase  at  a  fixed  price  specified  vessels 

for  use  in  case  of  war  The  construction  of  such  vessels  is 
subject  to  government  approval,  and  certain  subsidies  are 
granted  to  these  companies.     In  time  of  war  both  officers 

>  Hall,  p.  527.  » R.  D.  I.,  IV,  695. 


268  INTERNATIONAL  LAW 

and  men  must  belong  to  the  public  forces.  The  plans  of 
Russia,  Great  Britain,  and  the  United  States  have  met  with 
little  criticism.^ 

The  method  of  conmiissioning  auxiliary  vessels  has  given 
rise  to  much  discussion,  particularly  during  the  Russo- 
Japanese  \\'ar  in  1905.  Certaui  states  contend  that  the 
conversion  of  a  merchant  ship  into  a  war  ship  should  not  be 
permitted  on  the  high  sea.  Other  states  take  the  opposite 
position.  The  Hague  Conference  of  1907,  as  the  London 
Naval  Conference  of  1908-1909,  was  unable  to  reach  an  agree- 
ment as  to  the  matter  of  conversion  of  merchant  ships  into 
war  ships  on  the  high  seas. 

There  is,  however,  a  general  recognition  of  the  necessity 
for  control  of  a  converted  ship  by  direct  authority  of  the 
state  whose  flag  it  bears.  Such  a  ship  should  also  have  the 
external  marks  of  a  war  ship  and  should  observe  the  laws 
and  customs  of  war,  and  the  belligerent  making  such  con- 
version should  immediately  make  it  public  .^ 

114.     Capture  and  Ransom 

For  more  than  one  hundred  years  the  capture  of  private 
property  at  sea  has  been  regarded  with  disfavor  both  on  the 
continent  of  Europe  and  in  America. 

(a)  The  attitude  of  the  United  States  is  shown  by  the 

provision  in  the  Treaty  with  Prussia  of  1785,  whereby  fiaer- 

chant  vessels  of  either  state  are  to  pass  "free 

The  exemption 

from  capture  and  Unmolested."  ^  John  Quincy  Adams,  m 
of  private  1823,  askcd  England,   France,  and  Russia  to 

property  at  sea.  -    i       ^-i  •       ^  x       r  i. 

exempt  hostile  private  property  trom  capture. 
The  proposition  was  not  accepted.^  The  United  States  with- 
held its  approval  of  the  Declaration  of  Paris  of  1856  because 
private    property   was   not    exempted   from   capture.     The 

'  See  Act  of  May  10,  1892;  27  U.  S.  Sts.  at  Large,  27. 

'  For  Convention  of  1907  see  Scott,  "Conferences,"  p.  246. 

» Treaties  of  U.  S.,  pp.  905,  906.  »  7  Moore,  §  1198. 


CONDUCT  OF  HOSTILITIES  269 

resolution  in  the  United  States  House  of  Representatives 
of  Mr.  Gillett  of  Massachusetts,  of  April  25,  1898,  exempting 
merchant  ships  from  capture,  failed  to  pass,  the  argument 
being  advanced  that  Spain  had  shown  a  lack  of  reciprocity. 
On  April  28,  1904,  the  United  States  Congress  passed  a 
resolution  favorable  to  the  exemption  of  innocent  private 
property  at  sea.  States  in  practice  have  attempted  to  intro- 
duce the  principle  of  exemption  of  private  property  from 
capture,  as  at  the  inception  of  the  Franco-German  War  in 
1870.  The  American  delegates  to  the  Second  Peace  Confer- 
ence at  The  Hague  strenuously  endeavored,  but  without  suc- 
cess, to  induce  the  powers  represented  to  exempt  private 
property  at  sea  from  capture. 

Within  recent  years  declarations  and  regulations  have 
often  provided  that  in  case  of  capture  of  a  merchant  vessel 
its  officers  and  crew  might  be  made  prisoners  if  they  were 
by  training  or  enrollment  immediately  available  for  the 
naval  service  of  the  enemy. i  Some  might  be  detained  as 
witnesses.     Others  should  be  released. 

Passengers  on  such  vessels  should  be  treated  with  con- 
sideration and  landed  at  a  convenient  port.^ 

(6)  Capture  is  complete  when  the  hope  of  recovery  has 
ceased  and  surrender  has  taken  place.  It  was  long  held 
that  twenty-four  hours  of  possession  consti- 
tuted valid  capture.  In  earlier  times  the  cap- 
ture was  complete  when  the  property  seized  was  brought 
within  the  firm  possession  of  the  captor,  as  within  a  camp, 
fortress,  fleet,  etc.  This  rule  seems  to  be  more  equitable,  as 
the  effective  possession  is  a  better  ground  than  the  lapse  of 
time. 

The  evidence  of  intention  to  capture  must  be  shown  by 
some  act,  such  as  the  placing  of  a  prize  crew  or  prize  master 
on  board  a  captured  vessel,  though  the  vessel  has  been  held 

*  Japanese  Regulations,  1904,  Art.  50.  '  Ibid.,  Art.  69. 


270  INTERNATIONAL  LAW 

to  be  under  the  control  of  the  captor,  even  when  by  reason 
of  the  weather  no  one  has  been  placed  on  board.^ 

(c)  The  captor  should  bring  his  prize  into  port  for  adju- 
dication by  the  court.  The  title  to  the  prize  immediately 
_  ,  vests  in  the  state,  and  is  to  be  disposed  of  only 
vessel  as  by  state  authority.  However,  an  enemy's  ves- 
a  prize.  g^j  j^^y  j^g  destroyed  when  it  is  no  longer  sea- 
worthy, when  it  impedes  unduly  the  progress  of  the  captur- 
ing force,  when  its  recapture  is  threatened  by  the  enemy, 
when  the  capturing  force  is  unable  to  place  a  sufficient  prize 
crew  on  board  without  impairing  too  much  its  own  efficiency, 
and  when  a  port  of  the  capturing  force  to  which  the  prize 
may  be  brought  is  too  far  away.^  The  United  States,  in  the 
War  of  1812,  directed  its  officers  to  destroy  all  the  enemy's 
vessels  captured,  unless  very  valuable  and  near  a  port.  This 
was  necessary  on  account  of  its  lack  of  forces.^ 

(d)  Sometimes  the  original  owner  is  allowed  to  ransom 
by  repurchase  property  which  has  been  captured.  In  such 
Practice  in  ^^^^  ^^^  transaction  is  embodied  in  a  ''ransom 
regard  to  bill,"  by  which  the  master  agrees  that  the  owner 
ransom.  ^^  ^^^  ^^  ^j^^  captor  s,  Certain  sum  of  money. 

A  duplicate  copy  of  this  bill  serves  as  a  safe-conduct  for  the 
ransomed  vessel  so  long  as  there  is  no  departure  from  its 
terms  in  regard  to  the  course  to  be  sailed,  the  ports  to  be 
entered,  the  time  of  sailing,  etc.  The  contract  is  not  vio- 
lated when  the  ransomed  vessel  is  driven  from  her  course 
by  stress  of  weather  or  by  circumstances  beyond  her  control. 
The  captor  takes  from  the  captured  vessel  a  hostage  for 
the  fulfillmont  of  the  ransom  contract.  Should  the  captor's 
vessel  be  taken  with  the  hostage  and  ransom  bill  on  board 
by  a  vessel  of  the  enemy,  the  ransom  bill  is  discharged.  The 
captor  may  bring  suit  in  the  courts  of  the  captured  vessel's 

'The  "r;rotiiis,"  9  Cr.,  368,  370. 

'Hcc  rules  of  the  "Inst,  of  Int.  Law,"  1882;  "Annuaire,"  1883,  p.  221. 
Sec  Sec.  136  (/i)  for  destruction  of  neutral  prizes. 


CONDUCT  OF  HOSTILITIES  271 

state  usually,  though  in  England  the  process  is  by  action 
of  the  imprisoned  hostage  to  recover  his  freedom.  Some  of 
the  European  states  forbid  the  practice,  others  limit  it,  and 
others,  like  the  United  States,  allow  ransom. 

115.     Postliminium 

(a)  The  word  "postliminium"  is  derived  from  the  Roman 
Law  idea  that  a  person  who  had  been  captured  and  after- 
Thejus  wards  returned  within  the  boundaries  of  his 

postliminium  own  state  was  restored  to  all  his  former  rights, 
for  jus  postliminium  supposes  that  the  captive 
has  never  been  absent. ^  The  attempt  to  incorporate  this 
fiction  into  international  law  has  obscured  the  fact  for  which 
it  stands.  The  fact  is  that  the  rights  of  an  owner  are  sus- 
pended by  hostile  occupation  or  capture.  These  rights  revive 
when  the  occupation  or  capture  ceases  to  be  effective.  The 
consequences  of  acts  of  the  enemy  involving  the  capture 
while  in  the  enemy's  possession  are  not  necessarily  invali- 
dated if  these  acts  were  within  his  competence  by  the  laws 
recognized  by  civilized  states.  Thus  taxes  paid  during  a 
hostile  occupation  or  penalties  for  crime  imposed  by  the 
invader  are  held  to  discharge  the  obligation  as  if  imposed 
by  the  regular  authorities. 

(&)  When  the  restoration  of  the  property  or  territory  which 
has  been  in  the  captor's  possession  is  accomplished  by  a 
Restoration  of  V^^^Y  Other  than  the  owner,  the  service  of  res- 
property  or  toration  should  receive  proper  acknowledgment 
territory.  ^^   -^^  Other  cases  of  service.     If  territory  is 

restored  through  the  cooperation  of  an  ally,  the  conditions 
of  the  alliance  will  determine  the  obligation  of  the  original 
possessor. 

(c)  Most  states  have  definite  rules  as  to  the  restoration 
of  ships,  as  well  as  other  property,  and  the  granting  of  sal- 

•  Justinian,  I,  xii,  5. 


272  INTERNATIONAL  LAW 

vage.     The    United  States    provides   that  when  any  vessel 

or  other  property  already  captured  shall  be  recaptured,  the 

same  not  having  been  condemned  as  prize  before 

Restoration       j-ccapture,  the  court  shall  award  salvage  accord- 

of  ships.  ^  j>      1 

ing  to  the  circumstances  of  the  case.  If  the 
captured  property  belonged  to  the  United  States,  salvage 
and  expenses  shall  be  paid  from  the  treasury  of  the  United 
States;  if  to  persons  under  the  protection  of  the  United 
States,  salvage  and  expenses  shall  be  paid  by  them  on  restora- 
tion; if  to  a  foreigner,  restoration  shall  be  made  upon  such 
terms  as  by  the  law  of  his  country  would  be  required  of  a 
citizen  of  the  United  States  under  like  circumstances  of 
recapture;  but,  if  there  be  no  law,  it  shall  be  restored  upon 
the  payment  of  such  salvage  and  expenses  as  the  court  may 
order.  But  these  rules  are  not  to  contravene  any  treaty.^ 
When  the  original  crew  of  the  vessel  arise  and  take  the 
vessel  from  their  captors,  it  is  called  a  rescue  and  the 
crew  is  not  entitled  to  salvage.  When  an  American  ship, 
on  a  voyage  to  London  in  1799,  was  captured  by  the 
French  and  afterward  rescued  by  her  crew,  the  British 
sailors  working  their  passage  to  London  in  the  ship  were 
allowed  salvage.^ 

While  Prussia  was  in  possession  of  a  portion  of  France 
during  the  Franco-Prussian  War  of  1870,  Prussia  contracted 
with  certain  persons  for  a  sale  of  a  portion  of  the  public 
forests  in  France.  The  purchasers  paid  for  the  privilege  of 
fclHng  the  forests,  but  had  not  completed  the  cutting  of  the 
trees  when  the  Prussian  occupation  ceased.  The  purchasers 
claimed  that  they  had  the  right  to  complete  their  contract, 
but  France  maintained  that  her  rights  revived  when  the 
Prussian  occupation  ceased,  and  this  position  was  accepted 
by  Prussia  in  an  additional  article  to  the  treaty  of  peace 
of  December  11,  1871. 

•  U.  S.  Rev.  Sts.,  §  4652.  » The  "Two  Friends,"  1  C.  Rob.,  271. 


CONDUCT  OF  HOSTILITIES  273 

116.     Prisoners  and  Their  Treatment 

(a)  "A   prisoner   of   war   is   a   public   enemy   armed   or 

attached  to  the  hostile  army  for  active  aid,  who  has  fallen 

into  the  hands  of  the  captor,  either  fighting  or 

Who  may  be      wounded,  on  the  field,  or  in  the  hospital,  by 

made  prisoners.  '  '  i         j      j 

individual  surrender,  or  capitulation.  .  .  .  Citi- 
zens who  accompany  an  army  for  whatever  purpose,  such  as 
sutlers,  editors,  or  reporters  of  journals,  or  contractors,  if 
captured,  may  be  made  prisoners  of  war,  and  be  detained 
as  such."  "All  persons  who  are  of  particular  and  singular 
use  and  benefit  to  the  hostile  army  or  its  government"  ^  are 
liable  to  capture.  Levies  en  masse  are  now  treated  as  public 
enemies.  Within  recent  years  persons  who  by  reason  of 
their  trades  or  training  may  be  of  special  use  to  the  enemy 
are  included  among  those  liable  to  capture;  as  the  personnel 
of  captured  merchantmen. 

It  is  now  a  fundamental  principle  of  law  that  the  treat- 
ment of  a  prisoner  of  war  is  not  to  be  penal,  unless  the 
penalty  is  imposed  for  some  act  committed  after  his  capture. 
A  prisoner  of  war  is  subject  to  such  restraint  as  is  necessary 
for  his  safe  custody.  A  prisoner  of  war  may  be  killed  while 
attempting  to  escape,  but  if  recaptured  no  punishment  other 
than  such  confinement  as  is  necessary  for  his  safe  keeping 
is  allowable. 

(6)  The  refusal  of  quarter  to  prisoners  of  war  is  not  now 
allowed.     Those  who  have  violated  the  laws  of  war  or  the 

principles  of  humanity  are  liable  to  retaliation 
retaJUition'*       ^^  ^  measure  of  protective  retribution  only.     It 

"shall  only  be  resorted  to  after  careful  inquiry 
into  the  real  occurrence,  and  the  character  of  the  misdeeds 
that  may  demand  retribution."  ^ 

'  Instr.  U.  S.  Armies,  50;  Appendix,  pp.  359,  360. 
*  Instr.  U.  S.  Armies,  28.     See  Appendix,  p.  355. 


274  INTERNATIONAL  LAW 

(c)  "  Prisoners  of  war  may  be  interned  in  a  town,  fortress, 

camp,  or  any  other  locality,  and  bound  not  to  go  beyond 

certain  fixed  lines;  but  they  can  only  be  con- 
n  ernmen  .       ^^^^  ^^  ^^  indispensable  measure  of  safety  and 

only  while  the  circumstances  which  necessitate  the  measure 
continue  to  exist."  ^ 

(d)  "The  state  may  utilize  the  labor  of  prisoners  of  war 
according  to  their  rank  and  aptitude,  officers  excepted.    Their 

tasks  shall  not  be  excessive  and  shall  have  noth- 
^^  °         "     ing  to  do  with  the  military  operations.    .  .  .  The 
wages  of  the  prisoners  shall  go  towards  improving  their  posi- 
tion, and  the  balance  shall  be  paid  them  at  the  time  of  their 
release,  after  deducting  the  cost  of  their  maintenance."  2 

(e)  The  exchange  of  prisoners  of  war  is  a  purely  voluntary 
act  on  the  part  of  the  states  at  war.    This  takes  place  under 

an  agreement  called  a  "cartel."     The  exchange 
is  usually  rank  for  rank,  number  for  number, 
value  for  value,  though  it  is  sometimes  necessary  to  agree 
upon  certain  conventional  values  when  those  of  the  same 
rank  are  not  among  the  captives,  as  in  1862,  when  the  United 
States  exchanged  a  captain  in  the  army  for  six  privates,  etc. 
(/)  Prisoners  of  war  may  be  released  on  parole,  which  is  a 
promise  to  do  or  to  refrain  from  doing  certain  acts  in  con- 
sideration  of   the   grant   of   freedom   in   other 
respects.     The  punishment  for  breach  of  parole 
may  be  determined  by  the  court.^ 

(g)  The   sick   and   wounded   taken   in   the   field   become 
prisoners  of  war.    Their  treatment  is  now  generally  deter- 
mined by  the  provisions  of  the  Geneva  Conven- 
wouifded.  ^'^^^  ^^  ^^OC^.     This  convention  provides  for  the 

neutralizing  and  protection  of  hospitals,  ambu- 
lances, and  those  engaged  in  the  care  of  the  sick  and  wounded, 

»  Appendix,  p.  412.  »  Appendix,  p.  412. 

»  See,  as  to  prisoners  of  war,  Appendix,  pp.  371,  412. 


CONDUCT  OF  HOSTILITIES  275 

and  for  distinctive  marks  for  this  service,  particularly  the 
Red  Cross.  1 

(Ji)  The    Hague    Convention   provides   for   a   Bureau   of 

Information    to    answer  inquiries,   to   preserve 

Bm-eauof  property    found    on    battlefields    or    left    by 

Information.        x      i        >'  -^ 

prisoners,  etc.^ 

117.     Non-hostile  Relations  of  Belligerents 

(a)  In  time  of  war  it  is  necessary  that  belligerents  should 

have  certain  relations  not  strictly  hostile.     Negotiations  are 

often  opened  under  a  flag  of  truce.     In  regard 

Flag  of  truce.     ^^  ^j^jg  ^^^  Brussels  Code,  Article  43,  with  which 

Article  XXXII  of  the  Hague  Convention  of  1907  respecting 
the  Laws  and  Customs  of  War  on  Land  is  in  practical  accord, 
provides : — 

"An  individual  authorized  by  one  of  the  belligerents  to 
confer  with  the  other  on  presenting  himself  with  a  white  flag, 
accompanied  by  a  trumpeter  (bugler  or  drummer),  or  also  by 
a  flag-bearer,  shall  be  recognized  as  the  bearer  of  a  flag  of  truce. 
He  as  well  as  the  trumpeter  (bugler  or  drummer),  and  the 
flag-bearer,  who  accompanies  him,^  shall  have  the  right  of 
inviolability." 

He  may  be  accompanied,  *'  if  necessary,  by  a  guide  and  an 
interpreter."  A  commander  is  not  obliged  to  receive  the 
bearer  of  a  flag  of  truce,  and  may  take  necessary  measures 
to  prevent  injury  on  account  of  his  presence.  He  may  be 
blindfolded,  detained  at  an  outpost,  or  be  put  under  other 
restrictions.  If  the  bearer  take  advantage  of  his  privilege 
to  spy  upon  the  enemy,  he  is  liable  to  treatment  as  a  spy, 
though  he  may  report  such  military  information  as  he  may 
acquire  without  effort  on  his  own  part.  If  a  bearer  present 
himself  during  active  operations,  firing  need  not  necessarily 

'For  details,  see  Geneva  Convention,  Appendix,  p.  426;  Holls,  "The 
Hague  Peace  Conference,"  120  et  seq.  '  Appendix,  p.  413. 


276  INTERNATIONAL  LAW 

cease,  and  the  bearer  is  liable  to  such  consequences  as  his  act 
may  bring  upon  himself. 

"In  operations  afloat  the  senior  officer  alone  is  authorized 
to  dispatch  or  to  achnit  communication  by  flag  of  truce;  a  vessel 
in  position  to  observe  such  a  flag  should  communicate  the  fact 
promptly.  The  firing  of  a  gun  by  the  senior  officer's  vessel  is 
generally  understood  as  a  warning  not  to  approach  nearer.  The 
flag  of  truce  should  be  met  at  a  suitable  distance  by  a  boat  or 
vessel  in  charge  of  a  commissioned  officer,  having  a  white  flag 
plainly  displayed  from  the  time  of  leaving  until  her  return."  i 

(6)  Cartels  are  agreements  made  to  regulate  intercourse 
during  war.  Such  conventions  may  regulate  postal  and  tele- 
graphic communication,  the  reception  of  flags 
of  truce,  the  exchange  of  prisoners,  the  care  and 
treatment  of  the  same  and  of  the  sick  and  wounded. 

A  cartel  ship  is  a  vessel  sailing  under  a  safe-conduct  for  the 
purpose  of  carrying  exchanged  prisoners.  When  thus  em- 
ployed the  vessel  is  not  subject  to  seizure,  although  this  ex- 
emption does  not  extend  to  a  voyage  from  one  port  to  another 
in  her  own  state  for  the  sake  of  taking  on  prisoners.  The 
immunity  is  lost  if  the  vessel  departs  from  the  strict  line  of 
service  by  engaging  in  ordinary  commerce,  transportation,  or 
hostile  acts  .2  Such  a  vessel  may  carry  one  gun  for  the 
purpose  of  salutes. 

(c)  Passports,  safe-conducts,  and  safeguards  are  sometimes 
given  in  time  of  war. 

A  passport  is  a  written  permission  given  by  the  belligerent 
government  or  by  its  authorized  agent  to  the  subject  of  the 
Passports,  enemy  state  to  travel  generally  in  belligerent 

safe-conducts,     territory. 

and  safecnjards.         k         c  ^      i    •  •  , 

A  sare-conduct  is  a  pass  given  to  an  enemy 
subject  or  to  an  enemy  vessel,  allowing  passage  between  de- 

'  "International  Law,"  Naval  War  College,  2cl  ed.,  p.  93. 
» The  "Venus,"  4  C.  Rob.,  355. 


CONDUCT  OF  HOSTILITIES  277 

fined  points.  Safe-conducts  are  granted  either  by  the  govern- 
ment or  by  the  officer  in  command  of  the  region  within  which 
it  is  effective.^ 

A  safeguard  is  a  protection  granted  by  a  commanding 
officer  either  to  person  or  property  within  his  command. 
"Sometimes  they  are  delivered  to  the  parties  whose  persons 
or  property  are  to  be  protected;  at  others  they  are  posted 
upon  the  property  itself,  as  upon  a  church,  museum,  Hbrary, 
public  office,  or  private  dwelUng."  2  When  the  protection  is 
enforced  by  a  detail  of  men,  this  guard  must  use  extreme 
measures,  if  necessary  to  fulfill  their  trust,  and  are  themselves 
exempt  from  attack  or  capture  by  the  enemy. 

{d)  A  Hcense  to  trade  is  a  permission  given  by  competent 
authority  to  the  subject  of  that  authority  or  to  another  to 
carry  on  trade  even  though  there  is  a  state  of 
License  to  ^^^^  These  licenses  may  be  general  or  special. 
A  general  license  grants  to  all  the  subjects  of  the 
enemy  state  or  to  all  its  own  subjects  the  right  to  trade  in 
specified  places  or  in  specified  articles.  A  special  license 
grants  to  a  certain  person  the  right  to  trade  in  the  manner 
specified  in  his  license.  Neutrals  may  receive  a  license  to 
trade  in  lines  which  otherwise  would  not  be  open  to  them. 

A  general  license  is  granted  by  the  head  of  the  state.  A 
special  license  may  be  granted  by  a  subordinate,  valid  in  the 
region  which  he  commands  so  far  as  his  subordinates  are  con- 
cerned. His  superior  officers  are  not  necessarily  bound  by 
his  act,  however.^ 

It  is  held  that  a  license  must  receive  a  reasonable  construc- 
tion. In  general,  fraud  vitiates  a  license;  it  is  not  negotiable 
unless  expressly  made  so;  a  fair  compliance  in  regard  to  the 
terms  as  to  goods  is  sufficient;  a  deviation  from  the  prescribed 
course  invalidates   the  license  unless   caused   by  stress   of 

»  Appendix,  p.  366.  '  2  Halleck,  p.  361. 

»The  "Sea  Lion,"  5  Wall.,  630. 


278  INTERNATIONAL  LAW 

weather  or  by  accident;  and  a  delay  in  completing  a  voyage 
within  the  specified  time  mvalidates  the  license  unless  caused 
by  enemy  or  the  elements.^  When  a  license  becomes  void,  the 
vessel  is  liable  to  the  penalties  which  would  fall  upon  it  if  it 
had  committed  the  act  without  Mcense. 

(e)  The  cessation  of  hostilities  for  a  time  is  sometimes 
brought  about  by  agreement  between  the  parties  to  the  con- 
flict. When  this  cessation  is  for  a  temporary  or 
hosShtfer  °  military  end,  and  for  a  short  time  or  within  a 
truce,  limited  area,  it  is  usually  termed  a  suspension 

armistice.  ^^  hostilities.    When  the  cessation  is  quite  gen- 

eral, for  a  considerable  time,  or  for  a  political  end,  it  is 
usually  termed  a  truce  or  armistice. 

Acts  of  hostility  done  in  ignorance  of  the  existence  of  the 
cessation  of  hostilities  are  not  violations  of  the  agreement 
unless  there  has  been  negligence  in  conveying  the  information 
to  the  subordinates.  Prisoners  and  property  captured  after 
the  cessation  in  a  given  region  must  be  restored.  During  the 
period  of  the  truce,  the  commercial  and  personal  intercourse 
between  the  opposing  parties  is  under  the  same  restrictions  as 
during  the  active  hostilities,  unless  there  is  provision  to  the 
contrary  in  the  agreement.  The  relative  position  of  the 
parties  is  supposed  to  be  the  same  at  the  end  of  the  truce  as 
at  the  beginning. 

Hall  says:  "The  effect  of  truces  and  like  agreements  is 
therefore  not  only  to  put  a  stop  to  all  directly  offensive  acts, 
but  to  interdict  all  acts  tending  to  strengthen  a  belligerent 
which  his  enemy,  apart  from  the  agreement,  would  have  been 
in  a  position  to  hinder."  2  Acts  which  the  enemy  would  not 
have  been  in  a  position  to  hinder,  even  in  the  absence  of  a 
truce,  are  not  necessarily  interrupted  by  the  agreement.^ 

The  {provisioning  of  a  besieged  place  during  a  truce  has  been 
the  subject  of  some  difTerence  of  opinion.     If  the  conditions 

»  Hall,  pp.  r,.-)4-5.57.         »  Hall,  p.  545.  »  2  Halleck,  349  et  seq. 


CONDUCT  OF  HOSTILITIES  279 

of  the  truce  are  to  be  fair  to  the  besieged  party,  that  party 
must  be  allowed  to  bring  in  a  supply  of  provisions  equal  to 
the  consumption  during  the  continuance  of  the  truce.^  At 
the  present  time  this  matter  is  usually  provided  for  in  the 
terms  of  the  truce. 

A  truce  or  other  form  of  cessation  of  hostilities,  if  for  a 
definite  time,  comes  to  an  end  by  the  expiration  of  the  time 
limit;  if  for  an  indefinite  time,  by  notice  from  one  party  to 
the  other,  or  is  terminated  by  the  violation  of  the  conditions 
by  either  of  the  parties.  A  violation  of  a  truce  by  an  indi- 
vidual renders  him  liable  to  such  punishment  as  his  state  may 
prescribe.2 

(/)  A  capitulation  is  an  agreement  defining  the  conditions 

of  surrender  of  military  forces,  places,  or  districts  within  the 

command  of  an  officer.     Such  agreements  are 

Capitulation.  .  ,  ,  i-i.-      i  r 

purely  military  and  can  have  no  political  force. 
The  capitulation  agreed  upon  between  Generals  Sherman  and 
Johnston,  in  1865,  was  not  sanctioned  because  it  involved 
political  provisions.  By  the  capitulation  of  Santiago,  July, 
1898,  the  American  commander  agreed  to  transport  the 
Spanish  troops  to  Spain.  The  conditions  involved  in  a  capitu- 
lation may  vary  greatly,  but  at  the  present  time  it  is  usually 
possible  to  obtain  the  sanction  of  the  political  authority  be- 
fore entering  upon  an  agreement,  owing  to  the  improved 
methods  of  communication.  It  is  therefore  hardly  probable 
that  the  terms  of  capitulations  will  be  set  aside,  as  in  the  cele- 
brated case  of  El  Arisch,  in  1800.^  Agreements  made  by 
officers  not  possessing  proper  authority  or  made  in  excess  of 
authority,  are  called  sponsions  or  sub  spe  rati,  and  require 
ratification  or  acceptance  by  the  state  to  render  them  effective.* 

'  Calvo,  "  Droit  Int.,"  §§  2440-2446.  ^  2  Halleck,  345  et  seq. 

» Lawrence,  p.  463.  *See  1  Halleck,  297. 


OUTLINE  OF  CHAPTER  XXI 
TERMINATION   OF   WAR 

118.  METHODS   OF   TERMINATION   OF    WAR. 

119.  TERMINATION   OF    WAR   BY   CONQUEST. 

120.  TERMINATION   OF   WAR   BY   CESSATION  OF  HOSTILITIES. 

121.  TERMINATION  OF  WAR  BY  A  TREATY  OF  PEACE. 

(a)  Matters  covered  by  a  treaty  of  peace. 

(b)  When  a  treaty  of  peace  is  effective. 


280 


CHAPTER  XXI 
TERMINATION  OF  WAR 

118.     Methods  of  Termination 

War  may  come  to  an  end,  (1)  by  the  complete  submission 
of  one  of  the  parties  to  the  conflict  or  by  conquest,  (2)  by  the 
cessation  of  hostilities  between  the  parties  to  the  conflict,  or 
(3)  by  a  treaty  of  peace  duly  concluded. ^ 

The  object  of  war  in  early  times  was  often  conquest,  and  the 
conflict  ended  only  with  the  submission  of  one  of  the  parties. 
This  end  is  at  present  usually  disavowed,  and  the  object  of 
war  is  proclaimed  to  be  some  purpose  that  will  meet  with  as 
little  disapproval  as  possible.^  The  conditions  under  which 
the  war  will  be  brought  to  an  end  will  be  in  some  measure  de- 
termined by  the  object  for  which  the  war  was  undertaken. 

119.     By  Conquest 

Conquest  in  the  complete  sense,  as  in  the  case  of  the  de- 
bellatio  of  the  Romans,  is  not  now  common.  This  implies  a 
submission  of  one  of  the  parties  without  condition.  There 
have  been  examples  of  absorption  of  the  sovereignty  of  the 
vanquished  state  in  recent  times,  as  in  the  Prussian  Decree 
of  September  20,  1866,  by  which  conquered  Hanover,  Hesse, 
Nassau,  and  Frankfort  were  incorporated  into  the  Prussian 
state.  Similarly,  some  of  the  Italian  states  were  absorbed  by 
the  kingdom  of  Italy  after  the  Treaty  of  ViUafranca,  1859, 
and  Madagascar  became  a  part  of  France  in  1896. 

»  Heffter-Geffcken,  "Droit  Int.,"  II,  §§  176-190. 
'  See  above,  Sec.  99. 

281 


282  INTERNATIONAL  LAW 

Conquest  is  held  to  be  complete  when  the  fact  is  evident 
from  actual,  continued,  and  recognized  possession.  All  of 
these  evidences  may  not  be  present  in  a  given  case,  but  if  the 
intention  and  the  fact  of  the  conquest  and  the  submission  are 
fully  shown,  it  is  sufficient  to  constitute  validity.^ 

120.     By  Cessation  of  Hostilities 

Certain  wars  have  terminated  by  the  simple  cessation  of 
hostilities.  Cases  of  such  termination  are  rare.  Such  a 
method  leaves  in  doubt  the  relations  of  the  parties  to  the 
conflict,  and  occasions  inconvenience  to  all  states  which  may 
have  intercourse  with  the  contestants.  The  war  between 
Sweden  and  Poland  in  1716,  and  also  the  war  between  France 
and  Spain  in  1720,  came  to  an  end  m  this  way.  The  war 
between  Spain  and  her  American  colonies  ceased  in  1825,  but 
no  diplomatic  relations  were  established  with  them  till  1840, 
and  the  independence  of  Venezuela  was  not  recognized  till 
1850.  After  the  hostilities  between  France  and  Mexico, 
1862-1867,  no  diplomatic  relations  were  entered  into  till  1881. 
It  is  only  fair  to  neutrals  that  a  declaration  of  the  conclusion 
of  hostilities  should  be  made. 

121.     By  a  Treaty  of  Peace 

War  is  most  often  terminated  by  a  treaty  of  peace,  which  is 
usually  a  diplomatic  agreement  upon  the  manner  of  cessation 
of  hostilities  and  upon  the  conditions  of  the  reestablishment 
of  friendly  relations.  In  recent  years  such  treaties  have  often 
been  preceded  by  preliminary  agreements.  These  are  some- 
times preceded  by  an  armistice  in  order  that  the  terms  may 
not  be  changed  from  day  to  day  by  the  current  fortunes  of 
war,  as  was  the  case  in  the  discussions  pending  the  Treaty  of 
Westphalia  in  1648.    No  armistice  was  made  for  facilitating 

'  Case  of  Hesse  Cassel,  Hall,  p.  567. 


TERMINATION  OF  WAR  283 

the  Russo-Japanese  peace  negotiations  in  1905.  In  the  war 
between  China  and  Japan,  in  1894-1895,  an  agreement  for  the 
suspension  of  hostilities  was  made  on  March  30,  1895,  but  the 
treaty  of  peace  was  not  signed  till  April  17th.  These  pre- 
liminary agreements  may  sometimes  be  made  through  the 
friendly  offices  of  a  third  power,  as  in  the  protocol  of  August 
12,  1898,  in  regard  to  the  suspension  of  hostilities  between 
Spain  and  the  United  States.  The  ambassador  of  France 
acted  for  Spain.^  These  preliminary  agreements  can  be  con- 
cluded only  by  those  persons  delegated  for  the  purpose,  and 
they  are  as  binding  as  any  international  agreement  in  the 
matters  upon  which  they  touch. 

(a)  A  treaty  of  peace  usually  covers,  (1)  the  cessation  of 
hostilities,  (2)  the  subjects  which  have  led  to  war,^  (3)  agree- 
ments  for  immunity  for  acts  done  during  the 
covered  by  War  without  sufficient  authority  or  in  excess  of 
a  treaty  of  authority.  Such  acts  might  otherwise  become 
bases  for  civil  or  criminal  process.  Acts  not 
consequent  upon  the  existence  of  war,  but  such  as  are  action- 
able under  the  ordinary  laws  of  the  state,  as  for  violation  of 
private  contract,  ordinary  debts,  etc.,  are  not  included  unless 
there  is  a  direct  stipulation  to  that  effect.  This  immunity 
is  commonly  called  amnesty.  (4)  Provision  for  the  release 
of  the  prisoners  of  war  is  often  included.  (5)  The  renewal 
of  former  treaties  is  provided  for  in  many  peace  agreements. 
(6)  Special  provision  may  be  made  for  cession  of  territory, 
indemnity,  boundaries,  or  other  contingent  points.^ 

(6)  A  treaty  of  peace  is  usually  held  to  be  effective  from  the 
date  of  signature,  or  from  the  date  set  in  the  treaty.  Pro- 
visions fixing  the  time  at  which  hostilities  shall  cease  at 

»  30  U.  S.  Sts.  at  Large,  1742. 

'The  Treaty  of  Ghent,  Dec.  24,  1814,  between  U.  S.  and  Great  Britain 
is  a  marked  exception.  See  Treaties  of  U.  S.,  399;  Wheaton,  "Hist.  Int. 
Law,"  585;  Schurz,  "Henry  Clay,"  I,  pp.  105  et  seq. 

3  Treaty  between  Spain  and  U.  S.,  Dec.  10,  1898;  30  U.  S.  Sts.  at  Large, 
1754. 


284  INTERNATIONAL  LAW 

different  points  are  common.  Acts  of  war  committed  after 
the  conclusion  of  peace  or  after  the  official  notice  of  the 
When  a  treaty  termination  of  hostilities,  are  void.i  The  Treaty 
of  peace  is  of  Frankfort,  1871,  provides  that  maritime  cap- 
effective,  tures  not  condemned  at  the  conclusion  of  the 
war  are  not  good  prize. 

"The  general  effect  of  a  treaty  of  peace  is  to  replace  the 
belligerent  countries  in  their  normal  relation  to  each  other."  2 
In  case  of  no  stipulations  to  the  contrary,  the  doctrine  of  uti 
possidetis  applies,  by  which  the  property  and  territory  in  the 
actual  possession  of  either  of  the  belligerents  at  the  conclu- 
sion of  the  war  vests  in  the  one  having  possession. 

Private  rights  suspended  during  the  war  revive  on  the 
conclusion  of  peace.  Though  it  was  once  held  that  debts 
could  be  confiscated  during  war,  this  is  now  nowhere  main- 
tained.3  In  such  cases  the  obligation  revives  on  the  con- 
clusion of  peace,  and  by  the  Statute  of  Limitations  the  period 
of  the  war  is  not  reckoned  in  the  time  specified  as  the  period 
at  which  debts  become  outlawed.^ 

'Case  of  Swineherd,  1801,  1  Kent  Com.,  173,  note  (6);  "Sophie,"  1 
Kent  Com.,  174;  6  C.  Rob.,  138.  » Hall,  p.  558. 

'  Treaties  of  U.  S.,  386.  •  Lawrence,  §  239. 


PART  FIVE 
INTERNATIONAL  LAW  OF  NEUTRALITY 


OUTLINE  OF  CHAPTER  XXII 
DEFINITION  AND   HISTORY  OF  NEUTRALITY 

122.  DEFINITION   OF   NEUTRALITY. 

123.  FORMS   OF   NEUTRALITY  AND   OF   NEUTRALIZATION. 

(a)  Neutralized  states  are  bound  to  refrain  from  offensive  hostilities. 

(1)  Neutralization  of  Switzerland  and  Belgium. 

(b)  A  portion  of  a  state  may  be  the  subject  of  an  act  of  neutralization. 

(c)  The  neutralization  of  certain  routes  of  commerce. 

(d)  The  Geneva  Convention  of  1906  neutralized  persons  and  things. 

124.  HISTORY   OF   NEUTRALITY. 

(a)  Early  conceptions  of  neutrality. 

(b)  The  United  States  and  the  principles  of  neutrality. 

125.  DECLARATION   OF   NEUTRALITY. 

126.  TWO    CLASSES    OF    RELATIONS     BETWEEN    NEUTRALS    AND 

BELLIGERENTS. 

(a)  Between  neutral  states  and  belligerent  states  as  states. 

(b)  Between  the  states  and  individuals. 


286 


CHAPTER  XXII 
DEFINITION  AND   HISTORY  OF  NEUTRALITY 

122.     Definition  of  Neutrality 

Neutrality  is  the  relation  which  exists  between  states  which 
take  no  part  in  the  war,  and  the  belligerents.^  Impartial 
treatment  of  the  belligerents  is  not  necessarily  neutrality. 
The  modern  idea  of  neutrality  demands  an  entire  absence  of 
participation,  direct  or  indirect,  however  impartial  it  may  be. 

123.     Forms  of  Neutrality  and  of  Neutralization 

The  first  form  of  neutrality  is  what  was  formerly  known 
as  perfect  neutrality,  in  distinction  from  imperfect  neutrality, 
which  allowed  a  state  to  give  to  one  of  the  belligerents  such 
aid  as  it  might  have  promised  by  treaty  entered  into  before 
and  without  reference  to  the  war.  At  the  present  time  the 
only  neutrality  that  is  recognized  is  perfect,  i.e.  an  entire 
absence  of  participation  in  the  war.  A  second  form  of  neu- 
trality is  commonly  known  as  armed  neutrality.  This  im- 
plies the  existence  of  an  understanding,  on  the  part  of  some 
of  the  states  not  parties  to  the  contest,  in  accordance  with 
which  they  will  resist  by  force  certain  acts  which  a  belligerent 
may  claim  the  right  to  perform.  The  armed  neutralities  of 
February  28,  1780,  and  of  December  16,  1800,  defended  the 
principle  of  ''free  ships,  free  goods."  ^ 

Neutralization  is  an  act  by  which,  through  a  conventional 
agreement,  the  subject  of  the  act  is  deprived  of  belligerent 

1  The  "Three  Friends,"  166,  U.  S.  1,  52.  '  Lawrence,  p.  566. 

287 


288  INTERNATIONAL  LAW 

capacity  to  a  specified  extent.    Neutralization  may  apply 
in  various  ways. 

(a)  Neutralized  states  are  bound  to  refrain  from  offensive 
hostilities,  and  in  consequence  cannot  make  agreements  which 

may  demand  such  action.  Thus  it  was  recog- 
hfstuitiM  nizcd  that  Belgium  itself,  a  neutralized  state, 

forbidden  could  not  guarantee  the  neutrality  of  Luxem- 

neutraiized        |^^      -^^  ^^ie  Treaty  of  London,  in  1867.     Bel- 

gium  is,  however,  a  party  to  the  Treaty  of  Ber- 
lin of  1885,  agreeing  to  respect  the  neutrality  of  the  Kongo 
State.  This  agreement  "to  respect"  does  not  carry  with  it 
the  obligation  to  defend  the  neutrality  of  the  Kongo  State. 

The  important  instances  of  neutralization  are  those  agreed 
upon  by  European  powers.  By  the  declaration  signed  at 
Neutralization  Vienna,  March  20,  1815,  the  powers  (Austria, 
of  Switzerland  France,  Great  Britain,  Prussia,  and  Russia) 
and  Belgium.  '<  acknowledged  that  the  general  interest  de- 
mands that  the  Helvetic  States  should  enjoy  the  benefits  of 
perpetual  neutrality,"  and  declared  "that  as  soon  as  the 
Helvetic  Diet  should  accede  to  the  stipulations"  prescribed, 
her  neutrality  should  be  guaranteed.^  The  Swiss  Confedera- 
tion acceded  on  May  27,  1815,  and  the  guaranteeing  powers 
gave  their  acknowledgment  on  November  20,  1815.^  The 
powers  also  guaranteed  the  neutrality  of  a  part  of  Savoy  at 
the  same  time.  The  neutralization  of  Belgium  is  provided 
for  by  Article  VII  of  the  Treaty  of  London,  of  November  15, 
1831,  "Belgium,  within  the  limits  specified  in  Articles  I,  II, 
and  IV,  shall  form  an  independent  and  perpetually  Neutral 
State.  It  shall  be  bound  to  observe  such  Neutrality  towards 
all  other  States."  3 

(b)  A  portion  of  a  state  may  be  the  subject  of  an  act  of 
neutralization,  as  in  the  case  of  the  islands  of  Corfu  and 

'  1  Ilcrtslr-t,  64. 

>  Ibid.,  370;  see  also  "La  Neutrality  do  Suisse,"  S.  Bury,  R.  D.  I.,  II,  636. 

•  2  Hertalet,  863. 


DEFINITION  AND  HISTORY  OF  NEUTRALITY         289 

Paxo  by  the  Treaty  of  London,  of  March  29,  1864.  By 
Article  II,  "  The  Courts  of  Great  Britain,  France,  and  Russia, 
Neutralization  ^^  ^^^^^  character  of  Guaranteeing  Powers  of 
of  a  portion  of  Greece  declare,  with  the  assent  of  the  Courts 
a  state.  ^£  Austria   and   Prussia,  that  the  Islands   of 

Corfu  and  Paxo,  as  well  as  their  Dependencies,  shall,  after 
their  Union  to  the  Hellenic  Kingdom,  enjoy  the  advan- 
tages of  perpetual  Neutrality.  His  Majesty  the  King  of 
the  Hellenes  engages,  on  his  part,  to  maintain  such  Neu- 
trality." 1 

(c)  The  neutralization  of  certain  routes  of  commerce  has 
often  been  the  subject  of  convention.  The  United  States 
Neutralization  guaranteed  the^  "perfect  neutrality"  2  of  the 
of  routes  of  means  of  trans-isthmian  transit  when  the  State 
commerce.  ^^  ^^^  Granada  controlled  the  Isthmus  of 
Panama  in  1846.  By  the  Treaty  of  1867  with  Nicaragua 
the  United  States  guarantees  "the  neutrality  and  innocent 
use"  of  routes  of  communication  across  the  state  of  Nica- 
ragua.^ The  Nine  Powers  by  the  Convention  of  Constanti- 
nople, of  October  29,  1888,  Great  Britain  making  certain 
reservations,  agree,  by  a  conventional  act  upon  "a  definite 
system  destined  to  guarantee  at  all  times,  and  for  all  the 
powers,  the  free  use  of  the  Suez  Maritime  Canal."  ^  Full 
provisions  for  the  maintenance  of  the  neutrality  of  the 
canal  were  adopted  at  this  time  also.  Substantially  the 
same  rules  were  embodied  in  the  treaty  between  the  United 
States  and  Great  Britain,  concluded  November  18,  1901, 
in  regard  to  the  construction  of  the  canal  across  the  Isthmus 
of  Panama. 

(d)  The  Geneva  Convention  of  1906,  superseding  that  of 

» 3  Hertslet,  1592. 

'  Art.  XXXV,  Treaty  of  Dec.  12,  1846;  Treaties  of  IT.  S.,  204. 
'  Art.  XV,  Treaty  of  Jan.  21,  1867;  Treaties  of  U.  S.,  1784. 
'Pari.  Papers,  1889,  Commercial,  No.  2.     See  also  Holland,  "Studies 
in  Int.  Law,"  p.  269. 


290  INTERNATIONAL  LAW 

1864,  neutralized  persons  and  things  employed  in  the  amel- 
ioration of  the  condition  of  the  sick  and  wounded  in  the  time 
of  war.i  At  the  present  time  hospital  ships 
The  Geneva  properly  Certified  and  designated  by  flags  and 
Convention.       ^^  b^nds  of  coloF  on  the  outside  are  neutrahzed 

by  general  practice. 

124.     History  of  Neutrality 

Neutrality  as  now  understood  is  of  recent  growth.  In  early 
times,  and  in  general  throughout  the  Middle  Ages,  the  fear 
of  retaliation  alone  deterred  states  from  hostile  action  against 
belligerent  states  with  which  they  were  formally  at  peace.  A 
belligerent  in  the  prosecution  of  war  might  disregard  the  terri- 
torial, personal,  or  property  rights  in  a  neutral  state  without 
violation  of  the  principles  of  public  law  then  accepted. 

(a)  A  gradual  formulation  of  principles  which  gave  the 
basis  of  a  more  equitable  practice  came  through  the  custom 
Earl  concep-  ^^  making  treaty  provisions  in  regard  to  the 
tions  of  conduct  of  One  of  the  parties  when  the  other  was 

neutrality.  ^^  ^^^  ^^j^  ^  ^j^-^.^  ^^^^^^      npj^US  J^  ^^S  USUally 

provided  that  no  aid  should  be  given  to  the  third  state.  By 
the  end  of  the  seventeenth  century  that  which  had  former- 
ly been  a  matter  of  treaty  stipulation  became  quite  generally 
accepted  as  a  rule  of  action.  Grotius,  in  1625,  gives  only 
about  a  fourth  of  a  short  chapter  to  the  consideration  of  the 
duties  of  the  neutral  toward  the  belligerents  and  the  balance 
of  the  same  chapter  to  the  duties  of  belligerents  toward  those 
not  parties  to  the  war.  Grotius  maintains  that  "it  is  the 
duty  of  those  who  have  no  part  in  the  war  to  do  nothing 
which  may  favor  the  party  having  an  unjust  cause,  or  which 
may  hinder  the  action  of  the  one  waging  a  just  war,  .  .  . 
and  in  a  case  of  doubt  to  treat  both  belligerents  alike,  in  per- 
mitting transit,  in  furnishing  provisions  to  the  troops,  in 

*  Articles  1-16,  Appendix,  pp.  426-429. 


DEFINITION  AND  HISTORY  OF  NEUTRALITY.         291 

refraining  from  assisting  the  besieged."  ^  In  Barbeyrac's  note 
to  Pufendorf,  1706,  the  discussion  shows  that  the  idea  of 
neutrality  is  clearer,  but  still  confused  by  the  attempt  to 
admit  a  variety  of  qualified  forms  by  which  a  state  may  be 
neutral  in  some  respects  and  not  in  others.^  Bynkershoek  in 
1737  said,  "  I  call  those  non  hostes  who  are  of  neither  party."  ^ 
This  statement  of  Bynkershoek  furnishes  a  convenient  start- 
ing-point for  his  successors.  Vattel,  in  1758,  accepting  this 
definition,  also  says  that  a  state  may  give  such  aid  as  has 
been  promised  in  a  treaty  of  alliance  previously  made  with 
one  of  the  states,  and  still  preserve  exact  neutrality  toward 
the  other  state.* 

(6)  By  Article  XVII  of  the  Treaty  of  Amity  and  Commerce 
between  the  United  States  and  France,  in  1778,  ''It  shall 
be  lawful  for  the  ships  of  war  of  either  party, 
states  and  the  and  privateers,  freely  to  carry  whithersoever 
principles  of  they  please  the  ships  and  goods  taken  from 
aiy.  ^j^^.^  enemies;  ...  on  the  contrary,  no  shelter 
or  refuge  shall  be  given  in  their  ports  to  such  as  shall  have 
made  prize  of  the  subjects,  people  or  property  of  either  of 
the  parties,"  except  when  driven  in  by  stress  of  weather.  By 
Article  XXII  of  the  same  treaty,  foreign  privateers  were  not 
allowed  to  be  fitted  out  or  to  sell  their  prizes  in  the  ports  of 
either  party.  In  1793  M.  Genet,  the  French  minister,  began 
to  fit  out  privateers,  to  give  commissions  to  citizens  of  the 
United  States  to  cruise  in  the  service  of  France  against  the 
British,  and  to  set  up  prize  courts  in  the  French  consulates. 
He  justified  himself  under  the  provisions  of  the  Treaty  of 
1778.  His  action  threatened  to  bring  the  United  States 
into  war  with  Great  Britain  and  led  to  the  enunciation  of 
the  principles  by  the  United  States  authorities,  of  which 
Canning  in  1823  said,  "  If  I  wished  for  a  guide  in  a  system 

»  "De  Jure  Belli  ac  Pads,"  Lib.  Ill,  C.  XVII,  iii,  1. 

2  "Le  Droit  de  la  Nature  et  des  Gens,"  Liv.  VIII,  C.  VI,  vii,  n.  2. 

3  "Quaestiones  Juris  Publici,"  I,  ix.  *  "  Droit  des  Gens,"  III,  viii. 


292  INTERNATIONAL  LAW 

of  neutrality,  I  should  take  that  laid  down  by  America  in 
the  days  of  the  presidency  of  Washington  and  the  secretary- 
ship of  Jefferson."  ^  The  President's  Proclamation  of  Decem- 
ber 3,  1793,  declares  that,  in  the  war  of  France  and  the 
European  powers,  "the  duty  and  interest  of  the  United 
States  require  that  they  should  with  sincerity  and  good  faith 
adopt  and  pursue  a  conduct  friendly  and  impartial  toward 
the  belligerent  powers."  2  While  the  Proclamation  does  not 
mention  "neutrality,"  the  orders  and  instructions  issued  in 
accordance  with  it  use  the  word.  By  the  Act  of  Congress 
of  June  5,  1794,  and  by  subsequent  acts  codified  in  1818,^ 
the  United  States  assumed  a  position  which  marks  an  epoch 
in  the  history  of  neutrality.  The  principles  then  enunciated 
are  the  generally  accepted  rules  of  the  present  day.  Great 
Britain  passed  similar  enactments  in  1819,  and  made  these 
more  definite  and  stringent  by  the  Foreign  Enlistment  Act 
of  1870.4 

125.     Declaration  of  Neutrality 

In  recent  years  it  has  become  customary  to  issue  procla- 
mations of  neutrality,  or  to  make  known  the  attitude  of  the 
state  by  some  public  announcement.  This  method  publishes 
to  other  states  and  to  the  subjects  of  the  state  issuing  the 
announcement  the  position  which  the  state  will  take  during 
the  hostilities.  Ordinarily  some  specifications  as  to  what 
may  be  done  during  the  war  accompany  the  proclamation. 

In  the  war  between  the  United  States  and  Spain  in  1898 
and  in  subsequent  wars,  practically  all  the  leading  states  of 
the  world  made  known  their  neutrality.  Germany,  according 
to  the  custom  in  that  state  for  twenty  years  preceding,  made 
no  public  proclamation,  but  the  neutrality  of  the  Empire  was 
announced  less  formally  by  the  Emperor  in  a  speech  before 

'  .5  Speeches,  50.  *  1  Messages  and  Papers  of  the  Presidents,  156. 

'IT.  S.  Rev.  fits.,  §§  ,5281-5291,  see  Appendix,  p.  465.  For  cases,  see 
1  r;()ul(l  and  Tuckor,  090,  and  2  ibid.,  627. 

« 3.3  and  34  Vict.,  c.  00,  p.  560.     See  also  2  Lorimer,  490. 


DEFINITION  AND   HISTORY  OF   NEUTRALITY         293 

the  Reichstag.  The  British  proclamation  of  April  23,  1898, 
is,  however,  a  very  full  statement  of  the  principles  which  are 
to  be  observed  during  the  hostilities.^ 

A  clause  from  the  Russian  Declaration  of  April  18,  1898, 
is  an  example  of  the  announcement  of  the  general  fact  of 
neutrality :  "  It  is  with  keen  regret  that  the  Imperial  Govern- 
ment witnesses  an  armed  conflict  between  two  states  to 
which  it  is  united  by  old  friendship  and  deep  sympathy.  It 
is  firmly  resolved  to  observe  with  regard  to  these  two  bel- 
ligerents a  perfect  and  impartial  neutrality."  ^ 

126.     Relations  between  Neutrals  and  Belligerents 

The  relations  between  neutrals  and  belligerents  naturally 
fall  into  two  divisions: — 

(a)  The  relations  between  neutral  states  and  [belligerent 
states  as  states.  These  relations  are  determined  by  the 
respect  for  sovereignty,  by  international  usage,  and  by 
treaties. 

(6)  Relations  between  the  states  and  individuals.  These 
relations  involve : — 

(1)  Ordinary  commerce. 

(2)  Contraband. 

(3)  Unneutral  service. 

(4)  Visit  and  search. 

(5)  Convoy. 

(6)  Blockade. 

(7)  Continuous  voyage. 

(8)  Prize  and  prize  courts. 

■  Proc.  and  Decrees  during  the  war  with  Spain,  p.  31. 
^  Ibid.,  p.  63.     President  Cleveland's  neutrality  proclamations  as  to  the 
war  in  Cuba  are  given  in  29  U.  S.  Sts.  at  Large,  870,  881. 


OUTLINE  OF  CHAPTER  XXIII 

RELATIONS  OF  NEUTRAL  STATES  AND  BELLIGERENT 

STATES 

127.  GENERAL  PRINCIPLES  OF  THE  RELATIONS  BETWEEN  STATES. 

128.  NEUTRAL   TERRITORIAL   JURISDICTION. 

(a)  Inviolability  of  neutral  territory. 

(b)  Passage  of  belligerents  through  neutral  territory  restricted. 

(c)  Maritime  jurisdiction  of  a  neutral. 

(d)  Neutral  territory  as  a  base  of  military  operations  forbidden. 

129.  REGULATION   OF    NEUTRAL    RELATIONS. 

(a)  Obligation  of  neutral  state  to  offer  asylum  to  belligerent  troops 

seeking  refuge. 

(b)  Right  of  asylum  of  a  belligerent  vessel  in  a  neutral  port. 

(c)  Internment  of  a  vessel  in  a  neutral  port  to  escape  capture."" 

(d)  Ordinary  entry  depends  upon  the  will  of  the  neutral. 

(e)  Time  of  sojourn  of  vessels  usually  limited  to  twenty-four  hours. 

(1)  Regulation  by  proclamation. 

(2)  Regulations  in  regard  to  vessels  with  prizes. 

130.  NO    DIRECT   ASSISTANCE    BY   THE    NEUTRAL   ALLOWED. 

(aj  Military  assistance  on  any  grounds  not  now  justified. 

(b)  Furnishing  of  supplies  of  war  not  allowable. 

(c)  Loans  of  money  forbidden. 

(d)  Enlistment  of  troops  within  the  jurisdiction  of  a  neutral  state 

not  permitted. 

131.  POSITIVE    OBLIGATIONS    OF   A    NEUTRAL   STATE. 

(a)  Obligation  to  restrain  hostile  acts. 

(b)  Acts  in  themselves  not  necessarily  warlike  must  be  judged  by 

inference  as  to  their  purpose. 
2'J4 


CHAPTER  XXIII 

RELATIONS  OF  NEUTRAL  STATES  AND  BELLIGERENT 

STATES 

127.     General  Principles  of  the  Relations  between  States 

Of  the  general  principle  Wheaton  says,  "  The  right  of  every 
independent  state  to  remain  at  peace  whilst  other  states  are 
engaged  in  war  is  an  incontestable  attribute  of  sovereignty."  ^ 
Equally  incontestable  is  the  right  of  a  belligerent  state  to 
demand  that  a  state  not  a  party  to  the  war  shall  refrain  from 
all  participation  in  the  contest,  whether  it  be  direct  or  indirect. 

The  modern  tendency  is  to  remove  from  the  neutral  all 
possible  inconveniences  which  might  result  from  war  between 
states  with  which  the  neutral  is  at  peace.  The  normal  rela- 
tions between  neutral  and  neutral  are  unimpaired.  As  the 
neutral  is  at  peace  with  the  belligerents,  the  relations  between 
the  neutral  and  the  belligerents  are  affected  only  so  far  as 
the  necessities  of  belligerent  operations  demand.  "Every 
restriction,  however,  upon  the  rights  of  a  neutral  or  belligerent 
must  have  a  clear  and  undoubted  rule  and  reason.  The  bur- 
den of  proof  lies  upon  the  restraining  government."  ^ 

128.     Neutral  Territorial  Jurisdiction 

(a)  One  of  the  earliest  principles  to  receive  the  sanction  of 
theory  and  practice  was  that  of  the  inviolability  of  territorial 
Inviolability  jurisdiction  of  neutrals.  This  principle  has  been 
of  neutral  liberally  interpreted  in  recent  times,  and  the 

em  ory.  tendency  has  been  to  make  increasingly  severe 

the  penalties  for  its  violation. 

1  Wheat.  D.,  p.  509. 

2  "International  Law,"  Naval  War  College,  2d  ed.,  p.  118. 

295 


296  INTERNATIONAL  LAW 

The  Hague  Convention  of  1907  respecting  the  Rights  and 
Duties  of  Neutral  Powers  provides  that 

(1)  Neutral  territory  is  inviolable; 

(2)  "Belligerents  are  forbidden  to  move  troops  or  convoys 
of  either  munitions  of  war  or  supplies  across  the  territory  of 
a  neutral  Power." 

(6)  Formerly  it  was  held  that  the  right  of  passage  might  be 

granted  by  a  neutral  to  both  belligerents  on  the  same  terms, 

or  to  one  of  the  belligerents  if  in  accord  with  an 

Passage  of  i  i     p  i  mi 

belligerents  agreement  entered  into  before  the  war.  There 
through  neutral  ^re  many  examples  of  this  practice  before  the 
nineteenth  century.  Article  XIV  of  the  Hague 
Convention  shows  the  present  attitude  of  states.  "  A  neutral 
State  may  authorize  the  passage  through  its  territory  of 
wounded  or  sick  belonging  to  the  belligerent  armies,  on  con- 
dition that  the  trains  bringing  them  shall  carry  neither  com- 
batants nor  war  material.  In  such  a  case,  the  neutral  State 
is  bound  to  adopt  such  measures  of  safety  and  control  as  may 
be  necessary  for  the  purpose."  Such  persons  in  neutral  terri- 
tory "  must  be  guarded  by  the  neutral  Power,  so  as  to  insure 
their  not  taking  part  again  in  the  military  operations."  ^ 

(c)  The  rules  applicable  to  the  maritime  jurisdiction  of  a 
neutral  are  somewhat  different  from  those  of  the  land.  The 
Maritime  ncutral  docs  Hot  control  with  the  same  absolute 

jurisdiction  of  authority  the  waters  washing  its  shores  and  the 
a  neutra .  j^^^^   within   its   boundaries.     That   portion   of 

the  sea  which  is  within  the  three-mile  limit  is  for  the  purposes 
of  peaceful  navigation  a  part  of  the  open  sea.  The  simple 
passage  of  ships  of  war  through  these  waters  is  permitted.  All 
b(illigerent  acts  within  the  maritime  jurisdiction  of  a  neutral 
are  forbidden.^ 

The  waters  which  appertain  more  strictly  to  the  exclusive 

*  Appendix,  p.  422. 

*Case  of  the  "Gen.  Armstrong,"  2  Moore,  "Arbitrations,"  1071;  the 
"Anne,"  3  Wheat.,  435;  7  Moore,  510,  512,  617,  1089. 


RELATIONS  OF  NEUTRAL  AND  BELLIGERENT  STATES   297 

jurisdiction  of  the  neutral,  such  as  harbors,  ports,  enclosed 
bays,  and  the  like,  are  subject  to  the  municipal  laws  of  the 
neutral.^  Asylum  in  case  of  imminent  danger  is,  how- 
ever, not  to  be  denied;  otherwise  these  waters  are  open  to 
belligerent  ships  of  war  only  on  condition  that  they  observe 
the  regulations  prescribed  by  the  neutral.  Such  regulations 
must  of  course  be  impartial.  These  regulations  were  formerly 
announced  in  the  proclamations  of  neutrality,  as  was  the 
case  in  the  war  of  the  United  States  and  Spain  in  1898.  They 
are  now  quite  fully  set  forth  in  the  Hague  Convention  of  1907 
concerning  the  Rights  and  Duties  of  Neutral  Powers  in  Naval 
War.2 

(d)  Neutral  territory  may  not  be  used  as  the  base  of  mili- 
tary operations  or  for  the  organization  or  fitting  out  of  warlike 
expeditions. 

Sir  W,  Scott  said  in  the  case  of  the  Twee  Gehroeders  that 
"no  proximate  acts  of  war  are  in  any  manner  to  be  allowed 
to  originate  on  neutral  grounds."  ^  This  would 
tory  as  a  base  without  doubt  apply  to  filibustering  expeditions. 
of  military  Many  acts  are  of  such  nature  as  to  make  it  im- 
forMdden^  possible  to  determine  whether  this  principle  is 
violated  until  the  actor  is  beyond  the  jurisdic- 
tion of  the  neutral.  In  such  cases  the  neutral  sovereignty  is 
"violated  constructively."  ^  A  second  act  of  this  kind  might 
constitute  the  neutral  territory  a  base  of  military  operations. 

It  is  difficult  to  distinguish  in  some  cases  between  those  ex- 
peditions which  have  a  warlike  character  and  those  which 
cannot  at  the  time  of  departure  be  so  classed. 

In  1828,  during  the  revolution  in  Portugal,  certain  troops 
took  refuge  in  England.  In  1829  these  men,  unarmed  but 
under  military  command,  set  out  from  Plymouth  in  unarmed 
vessels,  ostensibly  for  Brazil.     Arms  for  their  use  had  been 

>  Perels,  "Das  Seerecht,"  §  39.  *  Appendix,  p.  420. 

»  3  C.  Rob.,  164.  •  HaU,  p.  603 


298  INTERNATIONAL  LAW 

shipped  elsewhere  as  merchandise.  Off  the  island  of  Terceira, 
belonging  to  Portugal,  they  were  stopped  by  English  vessels 
within  Portuguese  waters,  and  taken  back  to  a  point  a  few 
hundred  miles  from  the  English  Channel.  The  Portuguese 
then  put  into  a  French  port.  Most  authorities  are  agreed 
that  the  expedition  was  warlike,  but  that  the  British  ministers 
should  have  prevented  the  departure  of  the  expedition  from 
British  waters  where  they  had  jurisdiction,  instead  of  coercing 
it  in  Portuguese  waters.^ 

During  the  Franco-German  War  of  1870  a  large  body  of 
Frenchmen  left  New  York  in  French  vessels  bound  for  France. 
These  vessels  also  carried  large  quantities  of  rifles  and  car- 
tridges. The  Frenchmen  were  not  organized,  the  arms  were 
proper  articles  of  commerce,  and  the  two  were  not  so  related 
as  to  render  them  immediately  effective  for  war.  The  Ameri- 
can Secretary  held  that  this  was  not  a  warlike  expedition.  In 
discussing  this  case  Hall  says,  ''  The  uncombined  elements  of 
an  expedition  may  leave  a  neutral  state  in  company  with  one 
another,  provided  they  are  incapable  of  proximate  combina- 
tion into  an  organized  whole."  ^ 

In  order,  therefore,  that  an  expedition  may  be  warlike 
there  must  be  an  organized  body  of  men,  under  military  or 
naval  direction,  and  intending  to  engage  in  war  in  the  near 
future. 

129.     Regulation  of  Neutral  Relations 

The  relations  between  the  belligerent  and  the  neutral  may 
in  some  respects  be  regulated  by  the  neutral.  Such  regula- 
tions find  expression  in  neutrality  laws,  in  proclamations  of 
neutrality,  and  in  special  regulations  issued  under  exceptional 
circumstances  or  by  joint  agreement  of  several  states,  as  in 
the  Hague  Conventions. 

'  3  Phillimore,  287-299. 

*  Hall,  p.  607.     For  the  case  of  the  "Caroline,"  see  Appendix,  p.  480. 


RELATIONS  OF  NEUTRAL  AND  BELLIGERENT  STATES    299 

(a)  While  it  is  admitted  that  the  belligerent  troops  may 
not  use  the  land  of  a  neutral,  yet  the  neutral  is  under  obliga- 
tion to  offer  asylum  to  those  seeking  refuge  to 

Obligation  to  *'  ..  t-,i  n 

offer  asylum  to  escape  death  or  captivity.  It  is  the  duty  of  a 
belligerent  neutral  state,  within  whose  territory  commands, 
or  individuals,  have  taken  refuge,  to  intern  them 
at  points  as  far  removed  as  possible  from  the  theater  of  war. 
Interned  troops  may  be  guarded  in  camps,  or  fortified  places. 
The  expenses  occasioned  by  the  internment  are  reimbursed  to 
the  neutral  state  by  the  belligerent  state  to  whom  the  in- 
terned troops  belong.! 

(6)  In  general  a  belligerent  vessel  has  the  right  of  asylum 
Right  of  ^^  ^  neutral  port.     It  may  enter  to  escape  the 

asylum  for         perils  of  the  sea  or  to  purchase  provisions,  and 
vessels.  ^^  make  repairs  indispensable  to  the  continu- 

ance of  the  voyage. 

(c)  A  vessel  may  be  interned  in  a  neutral  port  when  enter- 
ing after  defeat  by   the  enemy  or  to  escape 
Internment  in  a  ^_^^j.^    and  if  it  docs  not  Icavc  within  the 

neutral  port.  '  ' 

prescribed  time  is  both  by  law  and  in  accord 
with  practice  liable  to  be  interned  till  the  end  of  the  war. 

The  Hague  Convention  of  1907  concerning  Neutral  Powers 
in  Naval  War  provides  that: 

"Art.  XXIV.  If,  notwithstanding  the  notification  of  the 
neutral  Power,  a  belligerent  ship  of  war  does  not  leave  a 
port  where  it  is  not  entitled  to  remain,  the  neutral  Power  is  en- 
titled to  take  such  measures  as  it  considers  necessary  to  render 
the  ship  incapable  of  taking  the  sea  during  the  war,  and  the 
commanding  officer  of  the  ship  must  facilitate  the  execution  of 
such  measures. 

"  When  a  belligerent  ship  is  detained  by  a  neutral  Power,  the 
officers  and  crew  are  likewise  detained. 

"The  officers  and  crew  thus  detained  may  be  left  in  the  ship 

1  Appendix,  pp.  421-422. 


300  INTERNATIONAL  LAW 

or  kept  either  on  another  vessel  or  on  land,  and  may  be  sub- 
jected to  the  measures  of  restriction  which  it  may  appear 
necessar}'-  to  impose  upon  them.  A  sufficient  number  of  men 
for  looking  after  the  vessel  must,  however,  be  always  left  on 
board. 

"The  officers  may  be  left  at  Uberty  on  giving  their  word  not 
to  quit  the  neutral  territory  without  permission."  * 

During  the  Russo-Japanese  War  of  1904-1905,  the  Russian 
transport  Lena  in  September,  1904,  was  interned  at  San 
Francisco,^  and  Admiral  Enquist's  squadron  in  June,  1905, 
was  interned  at  Manila.  During  the  same  war  the  principle 
of  naval  internment  was  acted  upon  by  China,  France,  Great 
Britain,  Germany,  and  the  United  States,  and  recognized  by 
Japan  and  Russia. 

{d)  Ordinary  entry  depends  upon  the  will  of  the  neutral, 

and  is  subject  to  conditions  imposed  upon  all  belligerents 

alike.^    These  conditions  usually  allow  a  vessel 

Ordinary  entry  _   ,         '' 

dependent  upon  to  take  on  necessary  provisions  and  supplies  to 
will  of  the         enable  her  to  reach  the  nearest  home  port.     A 

neutral. 

regulation   of  the  Hague  Convention   of   1907 
concerning  Neutral  Powers  in  Naval  War  provides  that : 

"Art.  XIX.  Belligerent  war-ships  may  only  revictuafin 
neutral  ports  or  roadsteads  to  bring  up  their  supplies  to  the 
peace  standard. 

"Similarly  these  vessels  may  only  ship  sufficient  fuel  to 
enable  them  to  reach  the  nearest  port  in  their  own  country. 
They  may,  on  the  other  hand,  fill  up  their  bunkers  built  to 
carry  fuel,  when  in  neutral  countries  which  have  adopted  this 
method  of  determining  the  amount  of  fuel  to  be  supplied."-* 

(e)  The  time  of  sojourn  is  usually  limited  to  twenty-four 
hours,  unless  a  longer  time  is  necessary  for  taking  on  supplies, 

1  Appendix,  p.  448.  2  U.  S.  For.  Rel.  1904,  pp.  785-790. 

»  7  Attorney-Generals'  Opinions,  122.  » Appendix,  p.  447. 


RELATIONS  OF  NEUTRAL  AND  BELLIGERENT  STATES    301 

completing  necessary  repairs,  or  from  stress  of  weather. 
Regulations  as  to  the  time  of  departure  of  hostile  vessels 
Time  of  ^^^^  ^   neutral  port  were  quite  fully  outlined 

sojourn  of  in  President  Grant's  proclamations  of  August 

vessels.  ^2  and  of  October  8,  1870,  during  the  Franco- 

Prussian  War.i  He  declared  that  no  vessel  of  war  of  either 
belligerent  should  leave  the 

"waters  subject  to  the  jurisdiction  of  the  United  States  from 
which  a  vessel  of  the  other  belhgerent  .  .  .  shall  have  pre- 
viously departed,  until  after  the  expiration  of  at 
egu  a  ion  y  ]g,^g|.  twenty-four  hours  from  the  departure  of 
such  last-mentioned  vessel  beyond  the  jurisdic- 
tion of  the  United  States.  If  any  ship  of  war  or  privateer 
of  either  belligerent  shall,  after  the  time  this  notification 
takes  effect,  enter  any  .  .  .  waters  of  the  United  States,  such 
vessel  shall  be  required  ...  to  put  to  sea  within  twenty- 
four  hours  after  her  entrance  into  such  .  .  .  waters,  except 
in  case  of  stress  of  weather  or  of  her  requiring  provisions 
or  things  necessary  for  the  subsistence  of  her  crew,  or  for  re- 
pairs; in  either  of  which  cases  the  authorities  .  .  .  shall  re- 
quire her  to  put  to  sea  as  soon  as  possible  after  the  expiration 
of  such  period  of  twenty-four  hours,  without  permitting  her  to 
take  in  supplies  beyond  what  may  be  necessary  for  her  imme- 
diate use;  and  no  such  vessel  .  .  .  shall  continue  within  such 
.  .  .  waters  .  .  .  for  a  longer  period  than  twenty-four  hours 
after  her  necessary  repairs  shall  have  been  completed,  unless 
within  such  twenty-four  hours  a  vessel  ...  of  the  other  belhger- 
ent, shall  have  departed  therefrom,  in  which  case  the  time  Hmited 
for  the  departure  .  .  .  shall  be  extended  so  far  as  may  be 
necessary  to  secure  an  interval  not  less  than  twenty-four  hours 
between  such  departure  and  that  of  any  .  .  .  ship  of  the  other 
belligerent  which  may  have  previously  quit  the  same  .  .  . 
waters.  No  ship  of  war  ...  of  either  belhgerent  shall  be  de- 
tained in  any  .  .  .  waters  of  the  United  States  more  than 

>  As  to  the  British  Neutrality  Regulations,  see  2  Ferguson,  Appendix 
F,  p.  77;  2  Lorimer,  446. 


302  INTERNATIONAL  LAW 

twenty-four  hours,  by  reason  of  the  successive  departures  from 
such  .  .  .  waters  of  more  than  one  vessel  of  the  other  belliger- 
ent. But  if  there  be  several  vessels  of  each  or  either  of  the  two 
belligerents  in  the  same  .  .  .  waters,  the  order  of  their  de- 
parture therefrom  shall  be  so  arranged  as  to  afford  the  oppor- 
tunity of  leaving  alternately  to  the  vessels  of  the  respective 
belHgerents,  and  to  cause  the  least  detention  consistent  with  the 
objects  of  this  proclamation.  No  ship  of  war  ...  of  either 
belUgerent  shall  be  permitted,  while  in  any  .  .  .  waters  within 
the  jurisdiction  of  the  United  States,  to  take  in  any  supplies 
except  provisions  and  such  other  things  as  may  be  requisite 
for  the  subsistence  of  her  crew,  and  except  so  much  coal  only 
as  may  be  sufficient  to  carry  such  vessel,  if  without  sail  power, 
to  the  nearest  European  port  of  her  own  country;  or  in  case 
the  vessel  is  rigged  to  go  under  sail,  and  may  also  be  pro- 
pelled by  steam  power,  then  with  half  the  quantity  of  coal 
which  she  would  be  entitled  to  receive  if  dependent  upon 
steam  alone;  and  no  coal  shall  be  again  supphed  to  any  such 
ship  of  war  ...  in  the  same  or  in  any  other  .  .  .  waters  of 
the  United  States,  without  special  permission,  until  after  the 
expiration  of  three  months  from  the  time  when  such  coal 
may  have  been  last  supplied  to  her  within  the  waters  of  the 
United  States,  unless  such  ship  of  war  .  .  .  shall,  since  last 
supphed,  have  entered  a  European  port  of  the  government  to 
which  she  belongs."  ^ 

The  tendency  at  the  present  time  is  to  make  regulations 

which  shall  guard  most  effectively  against  any  possible  use  of 

neutral  maritime   jurisdiction  for  hostile  pur- 
Regulations  in 

regard  to  poses.     In  the  Spanish-American  War  of  1898, 

vessels  with  Brazil  provided  that  in  case  of  two  belligerent 
prizes.  vessels: — "If  the  vessel  leaving,  as  well  as  that 

left  behind,  be  a  steamer,  or  both  be  sailing  vessels,  there  shall 
remain  the  interval  of  twenty-four  hours  between  the  sailing 
of  one  and  the  other.     If  the  one  leaving  be  a  sailing  vessel 

'  8  Messages  and  Papers  of  Presidents,  pp.  86  et  seq. 


RELATIONS  OF  NEUTRAL  AND  BELLIGERENT  STATES   303 

and  that  remaining  a  steamer,  the  latter  may  only  leave 
seventy-two  hours  thereafter."  ^  Many  states  had  adopted 
the  practice  of  absolutely  refusing  entrance  within  their  waters 
to  belligerent  vessels  with  prizes,  except  in  case  of  distress. 
Some  states  prescribed  that,  in  such  eases,  the  prizes  should 
be  liberated. 

The  Hague  Convention  of  1907  respecting  Neutral  Powers 
in  Naval  War  has  the  following : 

"Art,  XXI,  A  prize  may  only  be  brought  into  a  neutral 
port  on  account  of  unseaworthiness,  stress  of  weather,  or  want 
of  fuel  or  provisions, 

"It  must  leave  as  soon  as  the  circumstances  which  justified 
its  entry  are  at  an  end.  If  it  does  not,  the  neutral  Power  must 
order  it  to  leave  at  once;  should  it  fail  to  obey,  the  neutral 
Power  must  employ  the  means  at  its  disposal  to  release  it  with 
its  officers  and  crew  and  to  intern  the  prize  crew. 

"Art.  XXII.  A  neutral  Power  must,  similarly,  release  a 
prize  brought  into  one  of  its  ports  under  circumstances  other 
than  those  referred  to  in  Article  XXI. 

"  Art,  XXIII,  A  neutral  Power  may  allow  prizes  to  enter 
its  ports  and  roadsteads,  whether  or  not  under  convoy,  when 
they  are  brought  there  to  be  sequestrated  pending  the  decision 
of  a  Prize  Court.  It  may  have  the  prize  taken  to  another  of 
its  ports. 

"  If  the  prize  is  convoyed  by  a  war-ship,  the  prize  crew  may 
go  on  board  the  convoying  ship. 

"  If  the  prize  is  not  under  convoy,  the  prize  crew  are  left  at 
Hberty."  2 

The  United  States  and  some  other  powers  have  not  ac- 
cepted Article  XXIII  permitting  sequestration. 

*  Proc.  and  Decrees  of  the  war  with  Spain,  Brazil,  XVI,  p.  15. 

*  Appendix,  p.  447. 


304  INTERNATIONAL  LAW 

130.     No  Direct  Assistance  by  the  Neutral  Allowed 

The  neutral  state  may  not  furnish  to  a  belligerent  any 
assistance  in  military  forces,  supplies  of  war,  loans  of  money, 
or  in  any  similar  manner. 

(a)  Formerly  military  assistance  was  often  furnished  to  one 
of  the  belligerents  by  a  state  claiming  to  be  neutral  on  the 
,,.,..  ground  that  such  action  was  justified  by  a  treaty 

Military  *=>  1     c  1  u  u 

assistance  obligation  entered  into  before  the  war  could  be 
forbidden.  foreseen.     This  position  was  supported  by  some 

of  the  ablest  of  the  authorities  of  the  nineteenth  century,i  but 
is  no  longer  admitted. 

(6)  It  is  generally  held  that  a  neutral  state  may  not  furnish 
to  one  or  both  of  the  belligerents  supplies  of  war.  As  Hall 
Furnishing  of  ^^y^'  "^^^  general  principle  that  a  mercantile 
supplies  of  war  act  is  not  a  violation  of  a  state  of  neutrality,  is 
not  allowable.  pj.gggg(j  ^00  far  when  it  is  made  to  cover  the  sale 
of  munitions  or  vessels  of  war  by  a  state."  ^ 

A  case  that  aroused  discussion  was  occasioned  by  the  action 
of  the  authorities  of  the  United  States  conformably  to  a  joint 
resolution  of  Congress  of  July  20,  1868,  by  which  the  Secretary 
of  War  was  to  cause  "to  be  sold,  after  offer  at  public  sale  on 
thirty  days'  notice,  .  .  .  the  old  cannon,  arms,  and  other 
ordnance  stores  .  .  .  damaged  or  otherwise  unsuitable  for  the 
United  States  military  service,  etc."  ^  Complaint  was  made 
that  sales  made  under  this  act  during  the  time  of  the  Franco- 
German  War  were  in  violation  of  neutrality.  A  committee 
appointed  by  the  United  States  Senate  to  investigate  these 
charges  reported  that  sales  "were  not  made  under  such  cir- 
cumstances as  to  violate  the  obligations  of  our  government  as 
a  neutral  power;  and  this,  to  recapitulate,  for  three  reasons: 
(1)  The  Remingtons  [the  alleged  purchasing  agents  of  the 

'  Wheat.  D.,  §  425;  Dana,  contra,  note  203;  1  Kent  Com.,  pp.  49,  116; 
Bluntschli,  §  759;  Woolsey,  §  165. 

'  Hall,  p.  597.  '  15  U.  S.  Sts.  at  Large,  259. 


RELATIONS  OF  NEUTRAL  AND  BELLIGERENT  STATES   305 

French  government]  were  not,  in  fact,  agents  of  France  during 
the  time  when  sales  were  made  to  them;  (2)  if  they  were  such 
agents,  such  fact  was  neither  known  nor  suspected  by  our 
government  at  the  time  the  sales  were  made;  and  (3)  if  they 
had  been  such  agents,  and  that  fact  had  been  known  to  our 
government,  or  if,  instead  of  sending  agents,  Louis  Napoleon 
or  Frederick  William  had  personally  appeared  at  the  War 
Department  to  purchase  arms,  it  would  have  been  lawful  for 
us  to  sell  to  either  of  them,  in  pursuance  of  a  national  policy 
adopted  by  us  prior  to  the  conmaencement  of  hostilities."  ^ 
This  last  statement  does  not  accord  with  the  best  opinion 
and  doubtless  would  not  be  maintained  at  the  present  time. 
The  first  and  second  claims  might  justify  the  sale,  though  it 
would  be  in  better  accord  with  a  strict  neutrality  for  a 
state  to  refrain  from  all  sale  of  supplies  of  war  during  the 
period  of  war  between  two  states,  toward  which  states  it 
professes  to  maintain  a  neutral  attitude.  This,  of  course, 
does  not  affect  the  rights  of  commerce  in  arms  on  the  part 
of  the  citizens  of  a  neutral  state  not  residing  in  belligerent 
territory  .2 

(c)  The  authorities  are  practically  agreed  that  loans  of 
money  to  a  belligerent  state  may  not  be  made  or  guaranteed 

by  a  neutral  state.     This  does  not,  however. 
Loans  of  money  ^^^^^  the  commerce  in  money  which  may  be 

forbidden.  .      i     -    . 

carried  on  by  the  citizens  of  a  neutral  state  not 
residing  in  belligerent  territory. ^ 

(d)  A  neutral  may  not  permit  the  enlistment  of  troops 
for  belligerent  service  within  its  jurisdiction.  This  applies 
Enlistment  of  ^^  ^"^^  action  as  might  assume  the  propor- 
troops  not  tions  of  recruiting.  The  citizens  or  subjects  of 
permitted.  ^  neutral  state  may  enter  the  service  of  one  of 
the  belligerents  in  a  private  manner.* 

»  3  Whart.,  §  391.  »  Appendix,  p.  422. 

»  Appendix,  p.  422.  •  Appendix,  p.  421,  Articles  IV,  VI. 


306  INTERNATIONAL  LAW 

131.     Positive  Obligations  of  a  Neutral  State 

(a)  Not  only  must  a  neutral  state  refrain  from  direct 
assistance  of  either  belligerent,  but  it  must  also  put  forth 
Obligation  to  positive  efforts  to  prevent  acts  which  would 
restrain  assist  a  belligerent.     If  a  state  has  neutrality 

hostile  acts.       i^^^^^   -^  -^  ^^^^j.  obligations  to  enforce  these 

laws,  and  is  also  under  obligations  to  see  that  the  principles 
generally  recognized  by  international  law  are  observed.  Most 
states  make  provision  for  the  enforcement  of  neutrality.  In 
the  United  States  the  President  is  authorized  to  employ  the 
land  and  naval  forces  or  militia  to  execute  the  law.^  Jeffer- 
son said  that,  "If  the  United  States  have  a  right  to  refuse 
the  permission  to  arm  vessels  and  raise  men  within  their 
ports  and  territories,  they  are  bound  by  the  laws  of  neutrality 
to  exercise  that  right,  and  to  prohibit  such  armaments  and 
enlistments."  ^  There  can  be  no  difference  of  opinion  upon 
the  proposition  that  a  neutral  state  is  bound  to  restrain 
within  its  jurisdiction  all  overt  acts  of  a  character  hostile  to 
either  belligerent. 

(6)  There  are,  however,  many  acts  which  in  themselves 

have  no  necessarily  warlike  character.     Whether  such  acts 

are  in  violation  of  neutrality  must  be  determined 

Acts  in  them-      ,       .    -  j^     ^1     •  t-.  i"" 

selves  not  by  inference  as  to  their  purpose.  By  such  acts, 
necessarUy  ^g  jjall  says,  "the  neutral  sovereignty  is  only 
violated  constructively."  ^  These  acts  vary  so 
much  in  character  and  are  of  so  wide  a  range  that  the  deter- 
mination of  their  true  nature  often  imposes  severe  burdens 
upon  the  neutral  attempting  to  prevent  them.  The  destina- 
tion of  a  vessel  that  is  in  the  course  of  construction  may  de- 
termine its  character  so  far  as  the  laws  of  neutrality  are  con- 
cerned.    If  it  is  for  a  friendly  state  which  is  at  peace  with  all 

» U.  S.  Rev.  Sts.,  §  5288.  '  1  Amer.  State  Papers,  116. 

3  Hall,  p.  603. 


RELATIONS  OF  NEUTRAL  AND  BELLIGERENT  STATES    307 

the  world,  no  objection  to  its  construction  and  sale  can  be 
raised.  If  a  subject  of  a  neutral  state  builds  a  vessel  for 
one  of  the  belligerents,  such  an  act  has  sometimes  been 
regarded  as  a  legitimate  business  transaction,  at  other  times 
as  an  act  in  violation  of  neutrality.  As  a  business  transac- 
tion, the  vessel  after  leaving  neutral  territory  is  liable  to 
the  risk  of  seizure  as  contraband.  As  an  act  in  violation  of 
neutrality,  the  neutral  state  is  bound  to  prevent  the  depart- 
ure of  the  vessel  by  a  reasonable  amount  of  care.  The  line 
of  demarcation  which  determines  what  acts  a  neutral  state 
is  under  obligation  to  prevent,  and  what  acts  it  may  allow 
its  subjects  to  perform  at  their  own  risk,  is  not  yet  clearly 
drawn.  It  is  certain  that  a  state  is  bound  to  use  "due  dili- 
gence" to  prevent  the  violation  of  its  neutrality.  In  the 
case  of  the  Alabama  ^  this  phrase  was  given  different  mean- 
ings by  the  representatives  of  the  United  States  and  of  Great 
Britain.  The  arbitrators  declared  that  "due  diligence" 
should  be  "in  exact  proportion  to  the  risks  to  which  either 
of  the  belligerents  may  be  exposed  from  a  failure  to  fulfill 
the  obligations  of  neutrality  on  their  part."  2  This  definition 
is  not  satisfactory,  and  the  measure  of  care  required  still 
depends  upon  the  circumstances  of  each  individual  case,  and 
is  therefore  a  matter  of  doubt. 

The  Hague  Convention  of  1907  concerning  Neutral  Powers 
in  Naval  War  provides  that: 

"Art.  VI.  The  supply,  in  any  manner,  directly  or  indirectly, 
by  a  neutral  Power  to  a  belligerent  Power,  of  war-ships,  am- 
munition, or  war  material  of  any  kind  whatever,  is  forbid- 
den. .  .  . 

"Art.  VIII.  A  neutral  Government  is  bound  to  employ 
the  means  at  its  disposal  to  prevent  the  fitting  out  or  arming 
of  any  vessel  within  its  jurisdiction  which  it  has  reason  to  be- 
lieve is  intended  to  cruise,  or  engage  in  hostile  operations, 
»  Appendix,  p.  481.  '  7  Moore,  §  1330. 


308  INTERNATIONAL  LAW 

against  a  Power  with  which  that  Government  is  at  peace.  It 
is  also  bound  to  display  the  same  vigilance  to  prevent  the  de- 
parture from  its  jurisdiction  of  any  vessel  intended  to  cruise, 
or  engage  in  hostile  operations,  which  had  been  adapted  en- 
tirely or  partly  within  the  said  jurisdiction  for  use  in  war."  i 

'  Appendix,  p.  445. 


OUTLINE  OF  CHAPTER  XXIV 

NEUTRAL   RELATIONS   BETWEEN   STATES  AND 

INDIVIDUALS 

132.  ORDINARY   COMMERCE    IN   TIME    OF   WAR. 

(a)  Destination  of  the  vessel. 

(b)  Ownership  of  goods. 

(c)  Nationality  of  the  vessel. 

(1)  Instances  of  the  variety  of  practice  since  1778. 

(d)  Principles  of  the  Declaration  of  Paris  in  regard  to  the  flag  and 

goods. 

133.  CONTRABAND. 

(a)  History  of  the  principle  of  contraband. 

(1)  Attitude  of  the  United  States. 

(2)  Range  of  articles  classed  as  contraband. 

(b)  Declaration  of  London,  1909,  in  regard  to  articles  treated  as 

contraband. 

134.  PENALTY  FOR  CARRYING  CONTRABAND. 

(a)  Hostile  destination  renders  goods  liable  to  penalty. 

(b)  Provision  of  Declaration  of  London. 

(c)  Practice  of  preemption. 

(d)  When  contraband  is  only  part  of  the  cargo. 

135.  UNNEUTRAL    SERVICE. 

(a)  Participation  in  the  hostilities. 

(b)  Transmission  of  intelligence  in  the  interest  of  the  enemy. 

(c)  The  carriage  of  certain  belligerent  persons. 

(d)  Auxiliary  coal,  repair,  supply,  or  transport  ships. 

309 


136.  VISIT,    SEARCH,   AND   SEIZURE. 

(a)  The  right  of  visiting  and  searching  merchant  ships  upon  the  seas. 

(b)  The  object  of  the  right  of  search. 

(c)  The  method  of  conducting  the  search. 

(d)  Ship's  papers  as  evidence  of  the  character  of  the  vessel. 

(e)  Groxmds  of  seizure. 

(f)  Procedure  in  regard  to  neutral  vessel  and  property  in  case  of 

seizure. 

(g)  Exemptions  from  capture  as  provided  by  the  Hague  Convention. 
(h)  Destruction  of  neutral  prizes  generally  forbidden. 

137.  CONVOY. 

(a)  Differences  in  practice  in  regard  to  convoy. 

(b)  Provision  of  the  Declaration  of  London,  1909. 

138.  BLOCKADE. 

(a)  History  of  the  practice  of  blockade. 

(b)  Conditions  of  existence  of  a  blockade. 

(c)  Blockade  a  war  measvu-e. 

(d)  Declaration  of  a  blockade. 

(e)  Notification  of  the  existence  of  a  blockade. 

(f)  A  blockade  must  be  effective. 

(g)  Cessation  of  a  blockade. 

139.  VIOLATION   OP   BLOCKADE. 

140.  CONTINUOUS   VOYAGES. 

(a)  History  of  the  principle. 

(1)  Case  of  the  Bermuda. 

(2)  Case  of  the  Stephen  Hart. 

(3)  Position  of  the  United  States. 

(b)  Rules  of  the  Declaration  of  London,  1909. 

141.  PRIZE   AND   PRIZE   COURTS. 

(a)  Prize  the  general  term  applied  to  captures  made  at  sea. 

(b)  The  National  Prize  Court. 

(1)  Where  the  prize  court  may  sit. 

(2)  Methods  of  procedure  of  prize  courts. 

(c)  Prize  money  and  its  distribution. 

(d)  The  International  Prize  Court. 

310 


CHAPTER  XXIV 

NEUTRAL  RELATIONS  BETWEEN  STATES  AND 

INDIVIDUALS 

132.     Ordinary  Commerce  in  Time  of  War 

As  a  general  principle,  subjects  of  a  neutral  state  may 
carry  on  conunerce  in  the  time  of  war  as  in  the  time  of  peace. 
At  the  same  time,  owing  to  the  fact  of  war,  a  belligerent  has 
the  right  to  take  measures  to  reduce  his  opponent  to  subjec- 
tion. The  general  right  of  the  neutral  and  the  special  right 
of  the  belligerent  come  into  opposition.  The  problem  be- 
comes one  of  "  taking  into  consideration  the  respective  rights 
of  the  belligerents  and  of  the  neutrals;  rights  of  the  belligerents 
to  place  their  opponent  beyond  the  power  of  resistance,  but 
respecting  the  liberty  and  independence  of  the  neutral  in 
doing  this;  rights  of  the  neutrals  to  maintain  with  each  of 
the  belligerents  free  commercial  relations,  without  injury  to 
the  opponent  of  either."  ^ 

In  regard  to  commerce  in  the  time  of  war,  the  matters  of  des- 
tination, ownership  of  goods,  and  the  nationality  of  the  vessel 
have  been  the  facts  ordinarily  determining  the  treatment  by 
the  belligerent.  If  there  is  nothing  hostile  in  the  destination 
of  the  commercial  undertaking,  in  the  nature  of  the  goods, 
or  in  the  means  of  transport,  the  commerce  is  free  from  inter- 
ruption by  the  belligerent. 

'  Bonfils,  "Droit  Int.  Public."  §  1404  ff.;  Despa^rnet,  "Droit  Int.  Pub- 
lic," §  682  ff.;  Investigation  Chalmette  Supply  Camp,  House  Doc.  568, 
57th  Cong.  U.  S.,  1902. 

311 


312  INTERNATIONAI.  LAW 

(a)  The   questions  arising   in   regard   to   destination   will 

naturally  be  treated  under  the  subjects  of  con- 
Destination.       ,     ,       11111         1         i- 

traband  blockade  and  continuous  voyage. 

(6)  The  ownership  of  goods  has  usually  been  a  fact  deter- 
mining their  liability  to  capture. 

The  rules  of  the  Consolato  del  Mare,  compiled  in  the  thir- 
teenth or  fourteenth  century,  looked  to  the  protection  of 
the  neutral  vessel  and  the  neutral  goods  on  the 
Ownership  of     ^^^  hand,  and  to  the  seizure  of  the  enemy  vessel 

goods.  '  '' 

and  of  the  enemy  goods  on  the  other  hand.  The 
goods  of  an  enemy  could  be  seized  under  a  neutral  flag,  and 
the  goods  of  a  neutral  were  free  even  though  under  an  enemy 
flag.  This  doctrine  considered  mainly  the  character  of  the 
goods.  These  rules  were  held  in  favor  till  the  sixteenth  cen- 
tury, from  which  time  the  practice  varied  greatly,  sometimes 
being  regulated  by  treaty.  In  the  sixteenth  century  France 
advanced  the  doctrine  of  hostile  contagion,  maintaining  the 
principle  of  "enemy  ships,  enemy  goods,"  and  "enemy  goods, 
enemy  ships."  ^  The  practice  of  states  was  far  from  uniform 
in  the  various  wars. 

(c)  The   nationality   of   the   vessel   has    been   sometimes 

regarded  as  the  sole  fact  determining  liability 
Nationality  of     ^f  g^^^g  ^^  Capture,  and  at  other  times  affect- 

tiXl6    V6SS61. 

ing  only  the  vessel  itself. 

Under  the  rules  of  the  Consolato,  the  flag  determined  the 
liability  of  the  vessel  only.  Under  the  French  ordinances, 
the  flag  contaminated  the  goods.  From  1778,  the  doctrine 
that  the  neutral  flag  covered  enemy  goods  became  more 
commonly  accepted.  This  was  especially  emphasized  by  the 
armed  neutrality  of  1780. 

Some  of  the  agreements  of  the  United  States  will  show 
the  variety  of  practice  even  in  recent  times.  By  Art.  XXIII 
of  the  Treaty  of  1778  with  France  it  is  provided,  "  that  free 

'  Walker,  "Science  of  Int.  Law,"  p.  296. 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     313 

ships  shall  also  give  a  freedom  to  goods,  and  that  everything 
shall  be  deemed  to  be  free  and  exempt  which  shall  be  found  on 
Instances  of  board  the  ships  belonging  to  the  subjects  of  either 
practice  since  of  the  confederates,  although  the  whole  lading 
^'^'^^-  or  any  part  thereof  should   appertain  to  the 

enemies  of  either,  contraband  goods  being  always  excepted." 
In  the  Treaty  of  1785  with  Prussia  occurs  the  following: 
"Free  vessels  making  free  goods,  insomuch  that  all  things 
shall  be  adjudged  free  which  shall  be  on  board  any  vessel 
belonging  to  the  neutral  party,  although  such  things  belong 
to  an  enemy  of  the  other."  In  the  Treaty  of  1795  with 
Spain  is  a  similar  provision,  excepting,  however,  contraband 
of  war.  It  is  asserted  in  the  Treaty  of  1799  with  Prussia 
that'as  the  doctrine  of  "free  ships  make  free  goods"  has  not 
been  respected  ''during  the  two  last  wars,"  and  in  the  one 
"which  still  continues,"  the  contracting  parties  propose 
"after  the  return  of  a  general  peace"  to  confer  with  other 
nations  and  meantime  to  observe  "the  principles  and  rules 
of  the  law  of  nations  generally  acknowledged."  The  Treaty 
of  1819  with  Spain  interprets  the  clause  of  the  Treaty  of 
1795,  in  which  it  is  stipulated  that  the  flag  shall  cover  the 
property,  by  saying,  "that  this  shall  be  so  understood  with 
respect  to  those  Powers  who  recognize  this  principle;  but  if 
either  of  the  two  contracting  parties  shall  be  at  war  with  a 
third  party,  and  the  other  neutral,  the  flag  of  the  neutral 
shall  cover  the  property  of  enemies  whose  Government 
acknowledges  this  principle,  and  not  of  others."  The  Treaty 
of  1794  with  Great  Britain  expressly  provides  that  property 
of  an  enemy  on  a  neutral  vessel  shall  be  good  prize.  In  1887 
it  was  agreed  in  the  treaty  with  Peru  "that  the  stipulation 
in  this  article  declaring  that  the  flag  shall  cover  the  property 
shall  be  understood  as  applying  to  those  nations  only  who 
recognize  this  principle ;  but  if  either  of  the  contracting  parties 
shall  be  at  war  with  a  third,  and  the  other  shall  remain  neu- 


314  INTERNATIONAL  LAW 

tral,  the  flag  of  the  neutral  shall  cover  the  property  of  ene- 
mies whose  Governments  acknowledge  this  principle,  and  not 
that  of  others."  ^  In  spite  of  these  variations,  the  practice 
of  the  United  States  has  been  much  more  uniform  than  that 
of  the  states  in  which  the  foreign  relations  have  exercised  a 
more  direct  influence. 

The  nationality  of  the  vessel  is  determined  by  the  Declara- 
tion of  London  of  1909,  as  follows: 

"Art.  57.  Subject  to  the  provisions  respecting  the  transfer 
of  flag,  the  neutral  or  enemy  character  of  a  vessel  is  determined 
by  the  flag  which  she  is  entitled  to  fly. 

"The  case  in  which  a  neutral  vessel  is  engaged  in  a  trade 
which  is  reserved  in  time  of  peace,  remains  outside  the  scope  of 
this,  and  is  in  no  wise  affected  by  this  rule."  ^ 

^   ,      .      ,        (d)  Since  1856  the  principles  enunciated  in 

Declaration  of  .  . 

Paris  in  regard  the  Declaration  of  Paris  have  generally  pre- 
to  the  flag         vailed.    The  provisions  in  regard  to  the  flag 

and  goods.  ,  ,  ^  ^  ^ 

and  goods  are: — 

"2.  The  neutral  flag  covers  enemy's  goods,  with  the  excep- 
tion of  contraband  of  war. 

"  3.  Neutral  goods,  with  the  exception  of  contraband  of  war, 
are  not  Hable  to  capture  under  the  enemy's  flag."  ^ 

This  agreement  bound  only  those  states  which  signed  it. 
A  few  states,  including  the  United  States,  Spain,  Mexico, 
Venezuela,  and  China,  did  not  accede  to  these  provisions. 
The  United  States  declined  because  the  government  desired 
a  provision  exempting  all  private  property  at  sea  from  cap- 
ture. ^    In  the  War  of  1898,  the  United  States  announced 

*  See  Treaties  of  U.  S.  under  respective  dates.        ^  Appendix,  p.  461. 

^  Appendix,  p.  379,  and  particularly  the  London  Declaration,  1909, 
Chapter  VI,  Appendix,  p.  461. 

*  For  the  discussion  of  "  the  immunity  of  private  property  on  the  high 
seas,"  at  the  Hague  Peace  Conference,  see  HoUs,  306  et  seq. 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     315 

that  the  rules  of  the  Declaration  of  Paris  would  be  observed, 
and  Spain  made  a  similar  announcement  except  as  to  the 
clause  in  regard  to  privateering.^  Spain  did  not,  however, 
make  use  of  privateers.  The  goods  of  a  neutral  embarked 
in  a  belligerent  carrying  vessel  are  liable  to  the  damages  or 
destruction  which  may  be  the  consequence  of  necessary  acts 
of  war.  Destruction  not  the  result  of  such  necessary  acts 
would  be  in  violation  of  the  rules  of  the  Declaration  of  Lon- 
don, and  the  neutral  is  entitled  to  reparation. 2 

The  rules  of  the  Declaration  of  Paris  have  been  so  generally 
accepted  in  practice  that  there  is  little  possibility  that  they 
will  be  disregarded  by  the  civilized  states  of  the  world. 

133.     Contraband 

Contraband  is  the  term  applied  to  those  articles  which 
from  their  usefulness  in  war  a  neutral  cannot  transport  with- 
out risk  of  seizure.  While  a  state  is  under  obligation  to  pre- 
vent the  fitting  out  of  hostile  expeditions  and  to  refrain  from 
furnishing  belligerent  ships  warlike  material,  a  state  is  not 
bound  to  prevent  the  traffic  of  its  citizens  or  subjects  in 
contraband  of  war.  Such  articles  as  are  contraband  may  be 
seized  on  the  high  seas,  and  by  the  Declaration  of  Paris  ^  are 
not  protected  by  the  neutral  flag. 

(a)  Of  the  articles  of  commerce  themselves,  Grotius  makes 
three  general  classes: — 

"  1.  Those  which  have  their  sole  use  in  war,  such  as  arms." 
"2.  Those  which  have  no  use  in  war,  as  articles  of  luxury." 
"3.  Those  which  have  use  both  in  war  and  out  of  war,  as 

money,   provisions,   ships,   and   those  things   appertaining  to 

ships."  4 

^  Proclamations  and  Decrees  during  the  war  with  Spain,  pp.  77,  93. 

'  Appendix,  p.  459.  '  Appendix,  p.  379. 

» "De  Jure  Belli,"  Bk.  Ill,  Ch.  i,  5;  The  "Peterhoff,"  5  Wall.,  28,  58. 


316  INTERNATIONAL  LAW 

Grotius  regards  articles  of  the  first  class  as  hostile,  of  the 
second  as  not  a  matter  of  complaint,  and  of  the  third  as  of 
History  of  ambiguous  use    {usus  ancipitis),  of  which  the 

the  principle      treatment  is  to  be  determined  by  their  relation 

of  contraband,     j.      xi,  _ 

to  the  war. 

While  the  general  principle  may  be  clear,  the  application 
of  the  principle  is  not  simple.  Those  articles  whose  sole  use 
is  in  war  are,  without  question,  contraband.  Articles  ex- 
clusively for  peaceful  use  are  not  contraband.  Between  these 
two  classes  are  many  articles  in  regard  to  which  both  practice 
and  theory  have  varied  most  widely.  ^  The  theorists  have 
usually  endeavored  to  give  the  neutral  the  largest  possible 
liberty  in  commerce,  on  the  ground  that  those  who  were  not 
parties  to  the  war  should  not  bear  its  burdens.  This  has 
been  the  opinion  most  approved  by  the  jurists  of  Continental 
Europe.  Great  Britain  and  the  United  States  have  been 
inclined  to  extend  the  range  of  articles  which  might  on  occa- 
sion be  classed  as  contraband. 

The  attitude  of  the  United  States  may  be  seen  from  the 

following  enumeration  of  articles,  which  were 

Attitude  of  the  declared   contraband   in  the   Spanish  War   of 

United  States.  ^ 

1898:— 

"Absolutely  Contraband. — Ordnance;  machine  guns  and 
their  appliances  and  the  parts  thereof;  armor  plate  and  whatever 
pertains  to  the  offensive  and  defensive  armament  of  naval 
vessels ;  arms  and  instruments  of  iron,  steel,  brass,  or  copper,  or 
of  any  other  material,  such  arms  and  instruments  being  specially 
adapted  for  use  in  war  by  land  or  sea;  torpedoes  and  their  ap- 
purtenances ;  cases  for  mines,  of  whatever  material ;  engineering 
and  transport  materials,  such  as  gun  carriages,  caissons,  car- 
tridge boxes,  campaigning  forges,  canteens,  pontoons;  ordnance 
stores;  portable  range  finders;  signal  flags  destined  for  naval 
use;  ammunition  and  explosives  of  all  kinds;  machinery  for 

»  Woolsey,  "Int.  Law,"  §  194. 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     317 

the  manufacture  of  arms  and  munitions  of  war;  saltpeter; 
military  accouterments  and  equipments  of  all  sorts;  horses." 

"Conditionally  Contraband. — Coal,  when  destined  for  a 
naval  station,  a  port  of  call,  or  a  ship  or  ships  of  the  enemy; 
materials  for  the  construction  of  railways  or  telegraphs:  and 
money,  when  such  materials  or  money  are  destined  for  the 
enemy's  forces;  provisions,  when  destined  for  an  enemy's 
ship  or  ships,  or  for  a  place  that  is  besieged." 

The  range  of  articles  classed  as  contraband  will  naturally 
vary  from  time  to  time  as  changes  in  the  method  of  carrying 
Range  of  ^^  "^^^  occur.     Horses  have  usually  been  re- 

axticies  classed  gardcd  as  Contraband  by  France,  England,  and 
as  contraband.  ^^^  United  Statcs,  exccpt  in  their  dealings  with 
Russia,  which  state  has  always  opposed  this  inclusion.  The 
increasing  importance  of  coal  during  the  latter  half  of  the 
nineteenth  century  has  led  to  the  policy  of  determination  of 
its  character  by  its  destination.  Provisions  are  in  practically 
the  same  position  as  coal.^  In  the  war  with  Spain  in  1898, 
the  United  States  included  as  absolute  contraband,  horses, 
and  as  conditionally  contraband,  coal,  money,  and  provisions, 
which  Spain  did  not  mention.  Spain  mentioned  by  name 
sulphur,  which  the  United  States  did  not  specify,  though  it 
might  be  included  in  some  of  the  general  classes.  "As  the 
supply  of  sulphur  is  chiefly  obtained  from  Sicily,  the  Spanish 
government  would  have  had  a  rare  opportunity  to  seize  and 
confiscate  it  as  it  passed  through  the  Straits  of  Gibraltar.  But 
upon  the  request  of  the  Italian  government  it  .  .  .  refrained 
from  treating  sulphur  as  contraband."  ^ 

The  states  of  continental  Europe  had  generally  maintained 
in  time  of  war  the  division  of  articles  into  contraband  and 
non-contraband.  The  United  States,  Great  Britain  and 
Japan  usually  added  the  category  of  conditional  contraband. 

»The  "Commercen,"  1  Wheat.,  382. 

'  See  article  of  John  Bassett  Moore  in  Review  of  Reviews,  May,  1899. 


318  INTERNATIONAL  LAW 

When  Russia,  in  1904,  included  in  the  category  of  absolute 
contraband  such  articles  as  fuel  and  cotton,  several  states 
protested  on  the  ground  that  the  destination  for  military 
use  was  essential  before  these  articles  could  be  regarded  as 
contraband.!  Russia  later  gave  the  interpretation  that,  "  In 
cases  where  they  were  addressed  to  private  individuals  these 
articles  shall  not  be  considered  contraband  of  war." 

There  remained  great  diversity  of  opinion  upon  the  sub- 
ject of  contraband.  The  Hague  Conference  of  1907  formu- 
lated a  tentative  list  of  absolute  contraband,  but  did  not 
reach  final  conclusions  and  the  subject  of  contraband  was 
made  the  first  in  the  list  submitted  to  the  International  Naval 
Conference  at  London  in  1908-1909. 

(b)  The  International  Naval  Conference  participated  in  by 

Germany,  United  States,  Austria-Hungary,   Spain,   France, 

Great  Britain,   Italy,   Japan,  Netherlands,  and 

Declaration  of    j^uggia    adopted  in  the  Declaration  of  London 

London,  1909.  '  ^  ^  ,        ,        ,     ,•         i-   ^  i 

of  February  26,  1909,  the  tentative  list  agreed 
upon  at  the  Hague  Conference  in  1907. 

This  includes  articles  which  may,  without  notice,  be  treated 
as  contraband  of  war,  under  the  name  of  absolute  contraband 
when  destined  for  territory  within  the  enemy  jurisdiction. 
With  the  exception  of  "saddle,  draught,  and  pack  animals 
suitable  for  use  in  war,"  this  is  a  list  of  articles  primarily  and 
distinctively  of  military  character. 

In  Article  24  of  the  Declaration  articles  susceptible  of  use 
in  war  as  well  as  for  purposes  of  peace,  which  may,  without 
notice,  be  treated  as  contraband  of  war,  under  the  name  of 
conditional  contraband  were  enumerated.  This  list  includes 
foodstuffs,  fuel,  clothing,  etc. 

A  departure  from  earlier  regulations  was  made  in  providing 
that  (Article  27)  "Articles  and  materials  which  are  not  sus- 

'  II.  S.  For.  Rel.  1904,  p.  3;  British  Pari.  Papers,  Russia,  No.  1  (1905), 
p.  24. 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     319 

ceptible  of  use  in  war  are  not  to  be  declared  contraband  of 
war,"  A  specific  free  list  was  also  established  including  many 
raw  materials  such  as  cotton,  wool,  including  agricultural 
and  mining  machinery,  fancy  goods,  etc.  Likewise  articles 
serving  exclusively  to  aid  the  sick  and  wounded  may  not  be 
treated  as  contraband  of  war.  Articles  intended  for  the  use 
of  the  vessel  in  which  they  are  found,  and  those  intended  for 
the  use  of  her  crew  and  passengers  during  the  voyage,  may 
not  be  treated  as  contraband. 

It  was  recognized  that  in  the  course  of  time,  through  new 
inventions,  etc.,  other  articles  might  properly  be  added  to 
the  lists  of  absolute  or  conditional  contraband,  and  provision 
to  this  end  was  made  by  means  of  a  notified  declaration.^ 

134.     Penalty  for  Carrying  Contraband 

(a)  No  penalty  attaches  to  the  simple  act  of  transporta- 

tion of  contraband.     It  is  the  hostile  destina- 

Hostile  destina-     .  1      .1     ^  1  ,1  t    1  i      . 

tion  renders  tiou  of  the  goods  that  renders  them  liable  to 
goods  liable  to  penalty  and  the  vessel  liable  to  delay  or  other 
pena  y.  consequences  according  to  circumstances. 

Hostile  destination  for  absolute  contraband  is  "the  terri- 
tory belonging  to  or  occupied  by  the  enemy,  or  to  the  armed 
forces  of  the  enemy."  Hostile  destination  for  conditional 
contraband  is  in  general  restricted,  and  conditional  contra- 
band must  be  shown  "  to  be  destined  for  the  use  of  the  armed 
forces  or  of  a  government  department  of  the  enemy  State, 
unless  in  this  latter  case  the  circumstances  show  that  the 
articles  cannot  in  fact  be  used  for  the  purposes  of  the  war 
in  progress."  ^ 

(b)  The  Declaration  of  London,  1909,  provides  as  follows: 

''Art.  37.  A  vessel  carrying  articles  liable  to  capture  as 
absolute  or  conditional  contraband  may  be  captured  on  the  high 
seas  or  in  the  territorial  waters  of  the  belligerents  throughout 

1  Appendix,  Ch.  II,  p.  454.      ^  Appendix,  Articles  30-37,  pp.  456^57. 


320  INTERNATIONAL  LAW 

the  whole  course  of  her  voyage,  even  if  she  has  the  intention  to 
touch  at  a  port  of  call  before  reaching  the  hostile  destination. 

"  Art.  38.  A  capture  is  not  to  be  made  on  the  ground  of  a 
carriage  of  contraband  previously  accomplished  and  at  the 
time   completed. 

"  Art.  39.     Contraband  is  liable  to  condemnation." 

A  vessel  which  would  otherwise  be  free  when  carrying 
contraband  may  become  liable  to  condemnation  on  account 
of  fraud.  Such  fraud  may  consist  in  bearing  false  papers 
or  claiming  a  false  destination. 

In  certain  instances,  vessels  have  been  held  liable  to  con- 
demnation because  carrying  articles  which  by  treaty  between 
the  state  of  the  captor  and  the  state  of  the  carrier  are  specially 
forbidden. 

The  neutral  carrier  loses  freight  on  the  contraband  goods 
and  suffers  such  inconvenience  and  delay  as  the  bringing  in 
of  the  contraband  and  its  adjudication  in  a  proper  court  may 
entail,  and  may  be  condemned  to  pay  costs.^ 

(c)  Under  special  circumstances  goods  have  been  treated 

as  liable  to  preemption  instead  of  absolute  seizure.     Of  this 

Hall  says,  "In  strictness  every  article  which  is 

Preemption.  .,,  .,  x      i,        i  t.*   i.     -l 

either  necessarily  contraband,  or  which  has 
become  so  from  the  special  circumstances  of  war,  is  liable 
to  confiscation;  but  it  is  usual  for  those  nations  who  vary 
their  list  of  contraband  to  subject  the  latter  class  to  pre- 
emption only,  which  by  the  English  practice  means  purchase 
of  the  merchandise  at  its  mercantile  value,  together  with  a 
reasonable  profit,  usually  calculated  at  ten  per  cent  on  the 
amount."  ^  This  practice  was  not  viewed  with  favor  upon 
the  Continent  because  indicating  a  departure  from  the  gen- 
erally accepted  practice.^ 

'  Appendix,  Article  41,  p.  457.  ^  Hall,  p.  665. 

'  In  some  cases,  belligerents  exer.cise  the  so-called  right  of  using  or  de- 
stroying neutral  property  on  the  plea  of  necessity,  giving  compensation. 
This  practice  is  called  "angary,"  or  "prestation,"  and  is  by  most  jurists 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     321 

(d)  Provision  was,  however,  made  in  the  Declaration  of 
London,  1909,  by  which 

"A  vessel  stopped  because  carrying  contraband,  and  not 
liable  to  condemnation  on  account  of  the  proportion  of  con- 
„,  traband,  may,  according  to  circumstances,  be  al- 

band  is  only  lowed  to  continue  her  voyage  if  the  master  is 
part  of  the  ready  to  deliver  the  contraband  to  the  belhgerent 
•^^^^^  ship. 

"The  delivery  of  the  contraband  is  to  be  entered  by  the 
captor  on  the  log  book  of  the  vessel  stopped,  and  the  master  of 
the  vessel  must  furnish  the  captor  duly  certified  copies  of  all 
relevant  papers. 

"  The  captor  is  at  Uberty  to  destroy  the  contraband  which  is 
thus  delivered  to  him."  i 

The  United  States  has  from  time  to  time  made  treaties 
involving  this  principle.  An  early  treaty  between  the  United 
States  and  Sweden,  1783,  says  of  the  seizure  of  neutral  ves- 
sels with  contraband: 

"And  in  case  the  contraband  merchandize  be  only  a  part  of 
the  cargo  and  the  master  of  the  vessel  agrees,  consents  &  offers 
to  dehver  them  to  the  vessel  that  has  chscovered  them,  in  that 
case  the  latter,  after  recei\dng  the  merchandizes  which  are 
good  prize,  shall  immediately  let  the  vessel  go  &  shall  not  by 
any  means  hinder  her  from  pursuing  her  voyage  to  the  place  of 
her  destination."  2 

135.     Unneutral  Service 

Unneutral  service  differs  from  the  carriage  of  contraband, 
particularly  in  being  hostile  in  its  nature  and  involving  a 

either  condemned  or  regarded  with  disfavor.  An  illustration  is  the  sink- 
ing, during  the  Franco-Prussian  War  of  1870,  by  the  Germans,  of  several 
British  merchant  ships  in  the  Seine  to  prevent  French  gunboats  from 
going  up  the  river.  During  the  same  war,  the  Germans  seized  in  Alsace, 
for  military  purposes,  certain  railway  carriages  of  the  Central  Swiss  Rail- 
way and  certain  Austrian  rolling  stock,  all  of  which  remained  in  the 
possession  of  the  Germans  for  some  time.  See  Lawrence,  §  252;  Hall, 
p.  737. 

»  Appendix,  Article  44,  p.  458.  ^  Article  13,  Treaty  1783. 


322  INTERNATIONAL  LAW 

participation  in  the  contest  by  the  neutral  rendering  the 
service.  Such  service  involves  assistance  in  the  performance 
of  warlike  acts.  While  the  destination  is  a  question  of  vital 
importance  in  the  case  of  contraband,  the  intent  of  the  act 
is  a  matter  of  highest  importance  in  cases  of  unneutral  service. 
The  acts  generally  regarded  as  in  the  category  of  unneutral 
service  are: — 

1.  Participation  in  the  hostilities. 

2.  The  transmission  of  mtelligence  in  the  interest  of  the 
enemy. 

3.  The  carriage  of  certain  belligerent  persons. 

4.  Aid  by  auxiliary  coal,  repair,  supply,  transport  ships, 
or  other  ships  in  control  of  the  belligerent. 

(a)  Participation  in  the  hostilities  naturally  identifies  a 
Participation  neutral  with  the  belligerent  and  makes  him 
in  hostilities,     ^jj^j  j^jg  property  liable  to  similar  treatment. 

(6)  Of  the  transmission  of  intelligence,  in  the  case  of  the 
Atalanta,  Lord  Stowell  said: — 

"How  is  the  intercourse  between  the  mother  country  and 

the  colonies  kept  up  in  the  time  of  peace?     By  ships  of  war  or 

by  packets  in  the  service  of  the  state.     If  a  war 

Transmission       •    ,  i    j.i  ^i         i     it  ^  m      ^ 

of  intelligence     Intervenes,  and  the  other  belligerent  prevails  to 

interrupt  that  communication,  any  person  step- 
ping in  to  lend  himself  to  effect  the  same  purpose,  under  the 
privilege  of  an  ostensible  neutral  character,  does  in  fact  place 
himself  in  the  service  of  the  enemy  state."  ^ 

The  United  States  Naval  Code  of  1900,  withdrawn  in 
1904,  states  that 

"A  neutral  vessel  carrying  hostile  dispatches,  when  sailing 
as  a  dispatch  vessel  practically  in  the  service  of  the  enemy,  is 
liable  to  seizure.     Mail  steamers  under  neutral  flags  carrying 

'  6  C.  Rob.,  440,  454. 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     323 

dispatches  in  the  regular  and  customary  manner,  either  as  a 
part  of  their  mail  in  their  mail  bags,  or  separately  as  a  matter 
of  accommodation  and  without  special  arrangement  or  re- 
muneration, are  not  liable  to  seizure  and  should  not  be  de- 
tained, except  upon  clear  grounds  of  suspicion  of  a  violation  of 
the  laws  of  war  with  respect  to  contraband,  blockade,  or  un- 
neutral service,  in  which  case  the  mail  bags  must  be  forwarded 
with  seals  unbroken." 

Regular  diplomatic  and  consular  correspondence  is  not 
regarded  as  hostile  unless  there  is  some  special  reason  for 
such  belief. 

Such  acts  as  the  repetition  of  signals  by  a  neutral  ship  in 
interest  of  a  belligerent  might  render  the  ship  liable  to  penalty. 
Submarine  telegraphic  cables  between  a  belligerent  and  a 
neutral  state  may  become  liable  to  censorship  or  to  inter- 
ruption beyond  neutral  jurisdiction  if  used  for  hostile  pur- 
poses. 

(c)  The  limitation  in  regard  to  the  carriage  of  certain  bel- 
ligerent persons  applies  to  those  who  travel  in  such  manner 
Carriage  of  ^^  ^^  make  it  evident  that  they  travel  in  the 
certain  beiiig-  military  or  naval  service  of  the  belligerent  state, 
erent  persons,  jj  ^|^^  Carriage  of  the  person  or  persons  is  paid 
by  the  state,  or  is  done  under  state  contract,  it  is  regarded 
as  sufficient  evidence  of  unneutral  service.^  The  neutral 
carrier  engaged  in  ordinary  service  is  not  obliged  to  investi- 
gate the  character  of  persons  who  take  passage  in  the  usual 
way.  The  case  of  the  Trent  had  no  particular  bearing 
upon  this  subject,  as  it  merely  emphasized  a  principle  at 
that  time  settled  "that  a  public  ship,  though  of  a  nation 
at  war,  cannot  take  persons  out  of  a  neutral  vessel  at  sea, 
whatever  may  be  the  claim  of  her  government  on  those 
persons."  2  .  ' 

The  principle  thus  stated  by  Dana  was  modified  as  regards 

J  The  "Orozembo/'  6  C.  Rob.,  430.  '  Wheat.  D.,  p.  648. 


324  INTERNATIONAL  LAW 

those  actually  embodied  in  the  armed  forces  of  the  enemy  by 
the  Declaration  of  London,  1909,  to  the  following  effect: 

"  Art.  47.  Any  individual  embodied  in  the  armed  force 
of  the  enemy  and  who  is  found  on  board  a  neutral  merchant 
vessel,  may  be  made  a  prisoner  of  war,  even  though  there  be  no 
ground  for  the  capture  of  the  vessel." 

(d)  Auxiliary  coal,  repair,  supply,  or  transport  ships,  or 
other   vessels   under   orders   or   control   of   an 

Auxiliary  coal, 

repair,  supply,    enemy  government  or  in  its  exclusive   employ 
or  transport       have  an  Undoubted  hostile  character. ^ 

slllDS 

The  general  penalty  for  the  performance  of 
unneutral  service  is  the  forfeiture  of  the  vessel  so  engaged. 

The  penalties  specifically  prescribed  in  the  Declaration  of 
London,  1909,  are  set  forth  in  the  following  articles: 

"  Art.  45.  A  neutral  vessel  is  liable  to  be  condemned  and, 
in  a  general  way,  is  liable  to  the  same  treatment  which  a 
neutral  vessel  would  undergo  when  Uable  to  condemnation  on 
account  of  contraband  of  war: — 

"(1)  If  she  is  making  a  voyage  specially  with  a  view  to  the 
transport  of  individual  passengers  who  are  embodied  in  the 
armed  force  of  the  enemy,  or  with  a  view  to  the  transmission 
of  information  in  the  interest  of  the  enemy. 

"  (2)  If,  with  the  knowledge  of  the  owner,  of  the  one  who 
charters  the  vessel  entire,  or  of  the  master,  she  is  transporting  a 
military  detachment  of  the  enemy,  or  one  or  more  persons  who, 
during  the  voyage,  lend  direct  assistance  to  the  operations  of 
the  enemy. 

"In  the  cases  specified  in  the  preceding  paragraphs,  (1)  and 
(2) ,  goods  belonging  to  the  owner  of  the  vessel  are  hkewise  hable 
to  condemnation." 

"Art.  46.  A  neutral  vessel  is  liable  to  be  condemned  and, 
in  a  general   way,   is   liable   to   the  same   treatment   which 

»  The  "  Kow-shing,"  Takahashi,  24-5L 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     325 

she  would  undergo  if  she  were  a  merchant  vessel  of  the 
enemy : — 

"1.  If  she  takes  a  direct  part  in  the  hostilities, 

"2.  If  she  is  under  the  orders  or  under  the  control  of  an 
agent  placed  on  board  by  the  enemy  Government. 

"  3.  If  she  is  chartered  entire  by  the  enemy  Government. 

"4.  If  she  is  at  the  time  and  exclusively  either  devoted  to 
the  transport  of  enemy  troops  or  to  the  transmission  of  informa- 
tion in  the  interest  of  the  enemy. 

"In  the  cases  specified  in  the  present  article,  the  goods  be- 
longing to  the  owner  of  the  vessel  are  hkewise  hable  to  con- 
demnation." 1 

136.     Visit,  Search,  and  Seizure 

(a)  "The  right  of  visiting  and  searching  merchant  ships 
upon  the  seas — whatever  be  the  ships,  whatever  be  the  car- 
goes, whatever  be  the  destinations — is  an  in- 

The  right  of         o        ;         ,  ,        .    ,  r     i       i       p   n  •     • 

visiting  and  Contestable  right  of  the  lawiully  conimissioned 
searching  mer-  cruisers  of  a  belligerent  nation,"  2  is  the  state- 
ment of  the  general  principle  laid  down  in  the 
case  of  the  Maria.  Judge  Story  says  that  the  right  is  "al- 
lowed by  the  general  consent  of  nations  in  the  time  of  war  and 
limited  to  those  occasions."  ^  There  is,  however,  a  qualified 
right  of  search  in  the  time  of  peace  in  case  of  vessels  suspected 
of  piracy  or  of  slave  trade.  Under  these  circumstances  the 
right  must  be  exercised  with  the  greatest  care,  otherwise  the 
searching  party  is  liable  to  damages.* 

(b)  In  the  time  of  war  the  right  is  exercised  in  order  to 
The  object  of  secure  from  the  neutral  the  observance  of  the 
the  right  of  laws  of  neutrality,  or  specifically,  according  to 
search.  ^-^q  regulations  of  the  United  States:— 

1.  To  determine  the  nationality  of  a  vessel. 

1  Appendix,  Chap.  Ill,  p.  458.  *  1  C.  Rob.,  340,  359. 

'The  "Marianna  Flora,"  11  Wheat.,  1. 

'"International  Law,"  Naval  War  College,  p.  164;  Lawrence,  §§  124, 
210. 


326  INTERNATIONAL  LAW 

Note.  The  right  of  approach  to  ascertain  the  nation- 
ality of  a  vessel  is  generally  allowed  in  time  of  peace. 
"International  Law/'  Naval  War  College,  p.  165. 

2.  To  ascertain  whether  contraband  of  war  is  on 
board. 

3.  To  ascertain  whether  a  breach  of  blockade  is  in- 
tended or  has  been  committed. 

4.  To  ascertain  whether  the  vessel  is  engaged  in  any 
capacity  in  the  service  of  the  enemy. 

(c)  The  vessel  is  usually  brought  to  by  firing  a  gun  with 
a  blank  charge,  or  if  this  is  not  sufficient,  a  shot  across  the 
The  method  of  bows  or  even  by  the  use  of  necessary  force.  The 
conducting  the  cruiser  should  then  send  a  small  boat  with  an 
^^^^^  '  officer  to  conduct  the  search.     Arms  may  be 

carried  in  the  boat  but  not  upon  the  persons  of  the  men.  The 
officer  should  not  be  accompanied  on  board  the  vessel  by 
more  than  two  men.  He  should  examine  the  papers  of  the 
vessel.  If  these  papers  show  contraband,  any  offense  in  re- 
spect to  blockade,  or  that  she  is  in  the  enemy  service,  the 
vessel  should  be  seized;  otherwise  she  should  be  set  free, 
unless  suspicious  circumstances  justify  a  further  search.  An 
entry  in  the  log  book  of  the  circumstances  of  the  visit 
should  be  made  by  the  boarding  officer.^ 

{d)  The  papers  expected  to  be  on  board  as  evidence  of 
the  character  of  the  vessel  are: — 

Ship's  papers.  ^_   ^^^  ^^^.^^^^^ 

2.  The  crew  and  passenger  list. 

3.  The  log  book. 

4.  A  bill  of  health. 

5.  The  manifest  of  cargo. 

6.  A  charter  party,  if  the  vessel  is  chartered. 

7.  Invoices  and  bills  of  lading.^ 

»  See  Gen.  Order  U.  S.  Navy  No.  492,  1898. 

*Most  of  the  forms  are  given  in  Glass's  "Marine  International  Law." 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     327 

(e)  It  is  generally  held  that  a  vessel  may  be  seized  in 
case  of: — 
seizure.  1-  Resistance  to  visit  and  search. ^ 

2.  Clear  evidence  of  attempt  to  avoid  visit 
and  search  by  escape. 

3.  Clear  evidence  of  illegal  acts  on  the  part  of  the 
neutral  vessel. 

4.  Absence  of  or  defect  in  the  necessary  papers. 

(a)  Fraudulent  papers. 

(b)  Destruction,  defacement,  or  concealment  of 
papers. 

(c)  Simple  failure  to  produce  regular  papers. 

(/)  In  case  of  seizure  it  is  held  that  the  neutral  vessel  and 
property  vest  in  the  neutral   till    properly  condemned  by  a 
duly  authorized  court.     The  captor  is  therefore 
under  obligation : — 

1.  To  conduct  the  seizure  with  due  regard  to  the 
person  and  property  of  the  neutral. 

2.  To  exercise  reasonable  diligence  to  bring  the  cap- 
ture quickly  to  a  port  for  its  adjudication. 

3.  To  guard  the  capture  from  injury  so  far  as  within 
his  power. 

Failure  to  fulfill  these  obligations  renders  the  belligerent 
liable  to  damages.^ 

In  the  Chino-Japanese  War  of  1894,  the  Japanese  war 
vessels  visited  eighty-one  neutral  vessels  but  only  one  was 
brought  to  the  prize  court.^ 

In  the  Russo-Japanese  War  of  1904-1905  sixty-four  vessels 
were  brought  before  the  Japanese  prize  courts,  of  which  fifty 
were  condemned.* 

ig)  The  Hague  Convention  of  1907  with  regard  to  the 
Right  of  Capture  in  Naval  War,  provided  for  the  inviolability 

*  See  Declaration  of  London,  1909,  Article  63,  Appendix,  p.  462. 
2  Hall,  p.  620.  ^Takahashi,  Chino-Japanese,  16-23. 

» Takahashi,  Russo-Japanese,  537. 


328  INTERNATIONAL  LAW 

of  all   postal   correspondence  of  whatever  character  on  the 

high  seas  except  when  "destined  for  or  proceeding  from  a 

blockaded  port."     The  mail-ship  is  not  exempt 

Exemptions       ^^^  should  not  be  searched  except  when  abso- 

from  capture. 

lutely  necessary. 
Innocently  employed  small  coast  fishing  and  coast  trading 
vessels  are  exempt  from  capture,  as  are  vessels  engaged  in 
religious,  scientific,  or  philanthropic  missions.^ 

(h)  As  a  general  principle  a  neutral  vessel  which  has  been 

seized  should  be  conducted  to  a  prize  court 

Destruction  of    ^^^  according  to  the  Declaration  of  London, 

1909: 

"Art.  48.  A  neutral  vessel  which  has  been  captured 
may  not  be  destroyed  by  the  captor;  she  must  be  taken  into 
such  port  as  is  proper  for  the  determination  there  of  the  rights 
as  regards  the  validity  of  the  capture." 

It  was  evident,  however,  that  in  practice  neutral  vessels 
were  sometimes  destroyed  and  that  the  regulations  of  certain 
states  made  provision  for  destruction  under  exceptional  cir- 
cumstances. There  was  not  agreement  upon  what  should 
be  admitted  as  exceptional  circumstances.  To  meet  this 
difficulty  the  London  Declaration  provides : 

"  Art.  49.  As  an  exception,  a  neutral  vessel  which  has  been 
captured  by  a  belligerent  ship,  and  which  would  be  liable  to 
condemnation,  may  be  destroyed  if  the  observance  of  Article 
48  would  involve  danger  to  the  ship  of  war  or  to  the  success 
of  the  operations  in  which  she  is  at  the  time  engaged." 

All  persons  and  papers  must  be  placed  in  safety.  The 
captor  must  establish  that  his  act  was  due  to  "  an  exceptional 
necessity,"  otherwise  compensation  must  be  paid  "whether 
or  not  the  capture  was  valid."     Compensation  must  also  be 

^  Appendix,  p.  432. 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     329 

paid  if   the  capture  is  subsequently  held  invalid  and  also 
for  innocent  goods  destroyed.^ 

137.     Convoy 

(a)  A  neutral  merchant  vessel  is  sometimes  placed  under 
the  protection  of  a  ship  of  war  of  its  own  state,  and  is  then 
said  to  be  under  convoy. 

It  had  been  claimed  by  many  authorities,  particularly  those 

of  Continental  Europe,  that  such  a  merchant  vessel  was 

exempt   from   visitation   and  search  upon  the 

lOiff  fir  ATio^^ 

in  practice.  declaration  of  the  commander  of  the  neutral 
ship  of  war  that  the  merchantman  was  violating 
no  neutral  obligation.  England  had  uniformly  denied  the 
validity  of  this  claim  up  to  1908,  when  at  the  International 
Naval  Conference  she  waived  her  former  claim. 

Practice  has  been  very  divergent  in  most  states.  From 
the  middle  of  the  seventeenth  century  the  right  of  convoy 
has  been  asserted.  From  the  end  of  the  eighteenth  century 
the  claim  has  gained  in  importance. 2  The  United  States  has 
made  many  treaties  directly  recognizing  the  practice. 

In  the  war  of  1894, 

"Japan  ordered  naval  officers  to  give  credence  to  the  declara- 
tion of  a  convoying  officer.  The  idea  was  simply  that,  as 
generosity  was  the  chief  object  of  Japan,  she  did  not  wish  to 
search  and  make  actual  inspection  in  order  to  verify  the  char- 
acter of  escorted  merchantmen  and  goods,  trusting  to  the  honor 
of  neutral  officers.  This  was  the  main  idea  of  the  Japanese  in 
adopting  the  Continental  principle  regarding  convoy;  but  she 
was  not,  in  actual  cases,  so  lax  as  to  admit  exorbitant  claims 
of  the  right  of  convoy,  such  as  an  English  admiral  made  for  all 
British  ships  in  the  China  Sea."  ^ 

*  Appendix,  p.  459. 

^  Gessner,  "Le  Droit  des  neutres  sur  mer,"  Ch.  IV;  Perels,  "Manuel 
Droit  Maritime,"  §  56. 
"  Takahashi,  p.  13. 


330  INTERNATIONAL  LAW 

(6)  The  Declaration  of  London,  1909,  admitted  the  right 
Declaration  of  ^^  convoy  and  inserted  a  guarantee  for  its 
London,  1909.     legitimate  exercisB  I 

"Art.  61.  Neutral  vessels  under  convoy  of  their  national 
flag  are  exempt  from  search.  The  commander  of  a  convoy 
gives,  in  wTiting,  at  the  request  of  the  commander  of  a  bellig- 
erent ship  of  war,  all  information  as  to  the  character  of  the 
vessels  and  their  cargoes,  which  could  be  obtained  by  visit  and 
search. 

"Art.  62,  If  the  commander  of  the  belligerent  ship  of  war 
has  reason  to  suspect  that  the  confidence  of  the  commander  of 
the  convoy  has  been  abused,  he  communicates  his  suspicions 
to  him.  In  such  a  case  it  is  for  the  commander  of  the  convoy 
alone  to  conduct  an  investigation.  He  must  state  the  result 
of  such  investigation  in  a  report,  of  which  a  copy  is  furnished  to 
the  officer  of  the  ship  of  war.  If,  in  the  opinion  of  the  com- 
mander of  the  convoy,  the  facts  thus  stated  justify  the  capture 
of  one  or  more  vessels,  the  protection  of  the  convoy  must  be 
withdrawn  from  such  vessels."  i 

138.     Blockade 

Blockade  is  the  obstruction  of  communication  with  a  place 
in  the  possession  of  one  of  the  belligerents  by  the  armed 
forces  of  the  other  belligerent.  The  form  which  blockade 
takes  in  most  cases  is  that  of  obstruction  of  communication 
by  water. 

(o)  In  1584  Holland  declared  the  ports  of  Flanders  block- 
aded. Holland  did  not,  however,  maintain  this  declaration 
by  ships  of  war;  indeed,  in  the  early  days  there 
were  no  such  ships  as  would  make  the  mainte- 
nance of  a  blockade  possible.  Such  paper  blockades  were 
common  in  the  following  centuries,  and  all  the  ports  of  a  state 
were  frequently  proclaimed  blockaded,  even  though  there 

*  Appendix,  p.  461. 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     331 

might  be  no  force  in  the  neighborhood  to  insure  that  the 
blockade  would  not  be  violated.  Treaties  of  the  eighteenth 
century  show  an  inclination  in  the  states  to  lessen  the  evils 
of  blockade  by  proclamation.  The  growth  of  neutral  trade 
led  to  the  adoption  of  rules  for  its  greater  protection.  The 
armed  neutrality  of  1780  asserted  in  its  proclaimed  principles 
that  a  valid  blockade  should  involve  such  a  disposition  of 
the  vessels  of  the  belligerent  proclaiming  the  blockade  as  to 
make  the  attempt  to  enter  manifestly  dangerous.^  The  armed 
neutrality  of  1800  asserted  that  a  notice  from  the  commander 
of  the  blockading  vessels  must  be  given  to  the  approaching 
neutral  vessel.  During  the  Napoleonic  wars  there  was  a 
return  to  the  practice  of  issuing  proclamations  with  the  view 
to  limiting  neutral  commerce.  The  English  Orders  in  Council 
of  1806  and  1807,  and  the  Berlin  Decree  of  1806,  and  the 
Milan  Decree  of  1807,  by  which  Napoleon  attempted  to  meet 
the  English  Orders,  were  the  expression  of  the  extremest 
belligerent  claims  in  regard  to  the  obstruction  of  neutral 
commerce.  The  treaties  of  1815  said  nothing  in  regard  to 
blockade.  The  practice  and  theory  varied  till,  by  the  Decla- 
ration of  Paris  in  1856,  a  fixed  basis  was  announced  in  the 
provision  that  "Blockades,  in  order  to  be  binding,  must  be 
effective."  ^ 

(6)  A  blockade  presupposes, — 
1.  A  state  of  war. 
Conditions  of         3.  Declaration  by  the  proper  authority. 

existence.  j  i-      r  j  ^ 

3.  Notification  of  neutral  states    and  their 
subjects. 

4.  Effective  maintenance, 
(c)  The  so-called  pacific  blockade  differs  in  its  purpose  and 
method  to  such  an  extent  as  to  cause  many  to  deny  it  any 
standing  in  international  law.     Only  a  belligerent  can  insti- 

'  Walker,  "Science  of  Int.  Law,"  p.  304. 
'  Appendix,  p.  379. 


332  INTERNATIONAL  LAW 

tute   a  blockade  which  other  states  are  bound  to  respect, 

as,  without  war,  there  are  no  neutrals.     The  blockade  may 

continue    even    until  the  conclusion  of  peace. 

Blockade  a        rpj^^  agreement  to  a  truce  or  an  armistice  does 

war  measure.  ° 

not  put  an  end  to  the  blockade. 

(d)  Blockade  can  be  declared  only  by  the  proper  authority. 
As  war  is  a  state  act,  only  the  person  or  authority  desig- 
nated by  the  constitution  or  law  of  the  state  can  declare  a 

blockade.     Such  a  declaration  must,  in  general. 

Declaration.  «  i  i  •    <•      c     i  t 

come  from  the  chief  of  the  state,  in  certain 
cases  a  blockade  declared  by  an  officer  in  command  of  forces 
remote  from  the  central  government  is  held  to  be  valid  from 
the  time  of  its  proclamation,  if  the  act  of  the  commander 
receives  subsequent  ratification  from  the  central  authority. 
The  Declaration  of  London,  1909,  states  that : 

"Art.  9.     A  declaration  of  blockade  is  made  either  by  the 
blockading  Power  or  by  the  naval  authorities  acting  in  its  name. 
"  It  specifies — 

"  (1)  The  date  when  the  blockade  begins. 
"  (2)  The  geographical  limits  of  the  coast  blockaded. 
"  (3)  The  delay  to  be  allowed  to  neutral  vessels  for  departure. 
"Art.  10.     If  the  operations  of  the   blockading  Power,  or 
the  naval  authorities  acting  in  its  name,  do  not  establish  the 
blockade  in  conformity  A\'ith  the  provisions  which,  in  accord- 
ance with  Article  9  (1)  and  (2),  must  be  inserted  in  the  declara- 
tion of  blockade,  the  declaration  is  void,  and  a  new  declaration 
is  necessary  in  order  to  make  the  blockade  operative."  i 

(e)  Neutrals  must  be  notified  of  the  existence  of  a  blockade. 

This  notification  may  be : — 

1.  By  official  proclamation  announcing 
the  place  to  be  blockaded,  and  the  time  when  the  procla- 
mation becomes  effective. 

*  Appendix,  pp.  451-452. 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS    333 

2.  By  notification  to  vessels  when  they  come  near  the 
place  blockaded. 

3.  The  use  of  both  the  above  methods. 

The  theory  of  the  American  and  English  authorities  has 
been  to  assume  a  knowledge  of  the  blockade  on  the  part  of 
subjects  if  the  political  authority  of  their  state  had  been 
informed  of  the  existence  of  the  blockade  before  the  neutral 
vessel  left  port.  In  practice  both  powers  have  in  recent 
years  given  a  neutral  vessel  warning  of  the  existence  of 
blockade  of  a  port  before  seizure.^ 

The  French  rule  has  been  to  give  in  every  instance  an  ap- 
proaching neutral  vessel  warning  of  the  existence  of  a  block- 
ade, and  to  consider  the  notification  to  the  neutral  state 
authorities  as  merely  a  diplomatic  courtesy. 

Ordinarily  local  notification  is  made  to  port  and  consular 
authorities  of  the  place  blockaded. 

In  recent  years  the  time  allowed  a  vessel  to  discharge, 
reload,  and  to  leave  port  has  been  specified. 

In  order  that  a  blockade  may  be  fully  operative,  the  Decla- 
ration of  London  states  that : 

"Art.  11.     A  declaration  of  blockade  is  notified — 
"  (1)  To  neutral  Powers,  by  the  blockading  Power  by  means 
of  a  communication  addressed  to  the  Governments  themselves, 
or  to  their  representatives  accredited  to  it; 

"  (2)  To  the  local  authorities,  by  the  officer  commanding  the 
blockading  force.  These  authorities  vnW,  on  their  part,  inform, 
as  soon  as  possible,  the  foreign  consuls  who  exercise  their 
functions  in  the  port  or  on  the  coast  blockaded."  ^ 

In  case  of  special  notification  by  the  officer  in  command 
of  a  blockading  ship  to  a  neutral  vessel  ignorant  of  the  block- 

'  President  McKinley's  Proclamation  of  Blockade,  during  the  war  with 
Spain,  is  given  in  Proclamations  and  Decrees,  p.  75,  and  President  Lin- 
coln's, during  the  war  with  the  South,  in  12  U.  S.  Sts.  at  Large,  Appendix 
ii,  iii.  '  Appendix,  p.  452. 


334  INTERNATIONAL  LAW 

ade,  the  fact  with  particulars  should  be  entered  in  the  log 
of  the  neutral  vessel  over  the  officer's  signature.  ^ 

(/)  The  principle  that  a  blockade  must  be  effective  ap- 

A  blockade        P^^^®  ^^^^  ^^  ^^^  place  and  to  the  manner  of  en- 
must  be  forcement. 

effective,  ^    Blockade  must  apply  to   a   place  which 

may  be  blockaded,  i.e.  to  seaports,  rivers,  gulfs,  bays, 
roadsteads,  etc.  A  river  which  forms  the  boundary 
between  one  of  the  belligerent  states  and  a  neutral 
state  may  not  be  blockaded.  Rivers  flowing  for  a  part 
of  their  course  through  belligerent  territory  but  dis- 
charging through  neutral  territory  may  not  be  blockaded. 
Certain  waters  are  not  liable  to  blockade  because  exempt 
by  agreement;  as  in  the  case  of  the  Kongo  River  by  the 
Act  of  1885. 

2.  "  Blockades,  in  order  to  be  binding,  must  be  effect- 
ive, that  is  to  say,  maintained  by  a  force  sufficient  really 
to  prevent  access  to  the  coast  of  the  enemy."  ^    This  is 
interpreted  in  the  United  States  as  "maintained  by  a 
force  sufficient  to  render  ingress  to  or  egress  from  the 
port  dangerous."  ^    The  subject  of  the  degree  of  effect- 
iveness which  is  necessary  has  been  much  discussed,  and 
can  only  be  determined  by  the  circumstances  in  a  given 
case.^   The  English  interpretation  in  the  main  agrees  with 
that  of  the  United  States.     The  Continental  states"  are 
inclined  to  give  a  more  literal  interpretation  to  the  rule. 
The   Declaration   of   London,    1909,   recognizes  that  geo- 
graphical and  many  other  conditions  affect  the  maintenance 
of  a  blockade  and  decides: 

"Art.  3.     The  question  whether  a  blockade  is  effective  is  a 
question  of  fact."  ^ 

'  Appendix,  p.  452.  '  Declaration  of  Paris,  Appendix,  p.  379. 

^Gen.  Orders,  No.  492,  Navy  Dcpt.,  1898.  « Calvo,  §  2841. 

5  Appsndix,  p.  451, 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS    335 

(g)  A  blockade  comes  to  an  end: — 

1.     By   the   cessation   of   any   attempt  to  render  it 
effective. 
2.  By  the  repulse  by  force  of  the  vessels  at- 
tempting to  maintain  the  blockade. 

3.  For  a  given  neutral  vessel  when  there  is  no  evidence 
of  a  blockade,  after  due  care  to  respect  its  existence. 
This  may  happen  when  the  blockading  force  is  tempo- 
rarily withdrawn  on  account  of  stress  of  weather. 

There  is  a  general  agreement  that  in  the  other  cases  after 
cessation  blockade  must  be  formally  instituted  again  as  it 
was  in  the  beginning. 

139.     Violation  of  Blockade 

"  A  breach  of  blockade  is  not  an  offense  against  the  laws  of 
the  country  of  the  neutral  owner  or  master.  The  only  penalty 
for  engaging  in  such  trade  is  the  liability  to  capture  and 
condemnation  by  the  belligerent."  ^  The  American  and 
English  practice  was  to  regard  as  the  breach  of  blockade  the 
act  of  passing  into  or  out  of  a  blockaded  place,  unless  by 
special  privilege,  or  a  manifestation  of  an  intent  to  thus  pass. 
The  French  courts  imposed  a  penalty  only  upon  those  who 
actually  attempted  to  run  the  blockade.  The  American  prac- 
tice made  the  vessel  liable  to  penalty  from  the  time  of  its 
departure  from  neutral  jurisdiction  with  intent  to  enter  the 
blockaded  port  until  its  return,  unless  the  blockade  was 
raised  meantime. 

The  Declaration  of  London,  1909,  attempting  to  reconcile 
divergent  practices,  in  an  equitable  manner  prescribed  that: 

''  Art.  17.  The  seizure  of  neutral  vessels  for  violation  of 
blockade  may  be  made  only  within  the  radius  of  action  of  the 
ships  of  war  assigned  to  maintain  an  effective  blockade." 

"Art.  20.  A  vessel  which  in  violation  of  blockade  has 
'  Snow's  "International  Law,"  p.  155. 


336  INTERNATIONAL  LAW 

left  a  blockaded  port  or  has  attempted  to  enter  the  port  is 
liable  to  capture  so  long  as  she  is  pursued  by  a  ship  of  the 
blockading  force.  If  the  pursuit  is  abandoned,  or  if  the  block- 
ade is  raised,  her  capture  can  no  longer  be  effected."  i 

Under  proper  regulations,  certain  vessels  are  usually 
allowed  to  pass  a  blockade  without  penalty: — 

1.  Neutral  vessels  in  actual  distress.^ 

2.  Neutral  vessels  of  war  strictly  as  a  privilege.^ 

3.  Neutral  vessels  in  the  port  at  the  time  of  the  establish- 
ment of  the  blockade,  provided  they  depart  within  a  reason- 
able time.4 

In  the  War  of  1898,  the  United  States  allowed  thirty  days 
after  the  establishment  of  the  blockade  to  neutral  vessels  to 
load  and  to  depart. 

The  penalty  for  the  violation  of  blockade  is  forfeiture  of 
vessel  and  cargo,  although  when  vessel  and  cargo  belong  to 
different  owners,  and  the  owner  of  the  cargo  is  an  innocent 
shipper,  it  has  been  held  that  the  cargo  may  be  released.^ 
This  may  happen  if  a  vessel  deviates  from  her  original  des- 
tination to  a  blockaded  port.  The  crews  of  neutral  vessels 
violating  a  blockade  are  not  prisoners  of  war,  but  may  be 
held  as  witnesses  before  a  prize  court. 

140.     Continuous  Voyages 

(a)  The  Rule  of  War  of  1756  declared  that  during  war 
neutrals  were  not  permitted  to  engage  with  the  colonies  of 
a  belligerent  in  a  trade  which  was  not  permitted 
to  foreigners  in  time  of  peace.^  Ordinarily  in 
the  time  of  peace,  trade  between  the  mother  country  and 
the  colony  was  restricted  to  domestic  ships.  This  rule  was 
adopted  in  order  that  a  neutral  might  not,  by  undertaking 
trade  denied  him  in  time  of  peace,  relieve  one  of  the  bel- 

*  Appendix,  pp.  452,  453.  *  Appendix,  p.  45L 
'Appendix,  p.  451.  »  Appendix,  p.  452. 

•  Appendix,  p.  453.  •  See  3  Phillimore,  Chap.  XI. 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     337 

ligerents  of  a  part  of  the  burdens  of  war  which  the  interrup- 
tion of  domestic  commerce  by  the  other  belligerent  had 
imposed.  Trade  with  neutral  ports  was  allowed  in  time  of 
peace.  Therefore,  to  avoid  technical  violation  of  the  rule, 
neutral  vessels  sailing  from  a  port  within  belligerent  jurisdic- 
tion, touched  at  a  port  within  neutral  jurisdiction,  and  in 
some  cases  landed  and  reshipped  their  cargoes.  Lord  Stowell 
decided  that  it  was  a  settled  principle  "that  the  mere  touch- 
ing at  any  port  without  importing  the  cargo  into  the  com- 
mon stock  of  the  country  will  not  alter  the  nature  of  the 
voyage,  which  continues  the  same  in  all  respects,  and  must 
be  considered  as  a  voyage  to  the  country  to  which  the  vessel 
is  actually  going  for  the  purpose  of  delivering  her  cargo  at 
the  ultimate  port."  ^  In  the  case  of  the  William  in  1806, 
Sir  William  Grant  declared  that  "the  truth  may  not  always 
be  discernible,  but  when  it  is  discovered,  it  is  according  to 
the  truth  and  not  according  to  the  fiction  that  we  are  to  give 
to  the  transaction  its  character  and  denomination.  If  the 
voyage  from  the  place  of  lading  be  not  really  ended,  it  mat- 
ters not  by  what  acts  the  party  may  have  evinced  his  desire 
of  making  it  appear  to  have  ended.  That  those  acts  have 
been  attended  with  trouble  and  expense  cannot  alter  their 
quality  or  their  effect."  ^  The  English  authorities  held  that 
the  visit  to  a  neutral  port  did  not  constitute  the  trip  two 
voyages,  but  that  the  voyage  was  continuous  and  the  prop- 
erty liable  to  confiscation,  though  Hall  says  the  "cargo  was 
confiscated  only  when  captured  on  its  voyage  from  the  port 
of  colorable  importation  to  the  enemy  country."  ^  British 
cruisers,  however,  seized  three  German  vessels,  the  Herzog, 
the  Bundesrath,  and  the  General,  during  the  South  African 
War  of  1899-1900,  while  on  a  voyage  to  the  Portuguese  port 
of  Lourengo  Marquez,  which  was  the  natural  port  of  entry 

» The  "Maria,"  5  C.  Rob.,  365,  368.  '  5  C.  Rob.,  385,  396. 

» Hall,  p.  669. 


338  INTERNATIONAL  LAW 

for  Pretoria,  the  capital  of  the  South  African  Republic.  Ger- 
many protested.  The  vessels  were  released  and  the  English 
authorities  promised  that  in  the  future  they  would  refrain 
from  searching  vessels  until  the  vessels  had  passed  beyond 
Aden,  or  any  other  place  at  the  same  distance  from  Delagoa 
Bay. 
The  American  doctrine  of  continuous  voyages  is  a  con- 
siderable extension  of  the  English  doctrine  and 
Case  0  t  e        j^^^  ^^^^  ^j^j^  Severe  criticism.     In  the  case  of 

Bermuda. 

the  Bermuda,  captured  during  the  Civil  War  of 
1861-1865,  it  was  held  that:— 

"  Destination  alone  justifies  seizure  and  condemnation  of  ship 
and  cargo  in  voyage  to  ports  under  blockade ;  and  such  destina- 
tion justifies  equally  seizure  of  contraband  in  voyage  to  ports 
not  under  blockade;  but  in  the  last  case  the  ship,  and  cargo, 
not  contraband,  are  free  from  seizure,  except  in  cases  of  fraud 
or  bad  faith."  > 

In  the  case  of  the  Stephen  Hart,  a  British  schooner,  bound 
from  London  to  Cuba  with  a  cargo  of  war  sup- 

stephe^Hart  P^^^^'  captured  in  1862  off  the  coast  of  Florida, 
Judge  Betts  condemned  both  vessel  and  cargo. 

He  maintained  that: — 

"The  commerce  is  in  the  destination  and  intended  use  of  the 
property  laden  on  board  of  the  vessel,  and  not  in  the  incidental, 
ancillary,  and  temporary  voyage  of  the  vessel,  which  may  be 
but  one  of  many  carriers  through  which  the  property  is  to  reach 
its  true  and  original  destination.  ...  If  the  guilty  intention, 
that  the  contraband  goods  should  reach  a  port  of  the  enemy, 
existed  when  such  goods  left  their  English  port,  that  guilty  in- 
tention cannot  be  obliterated  by  the  innocent  intention  of 
stopping  at  a  neutral  port  on  the  way.  .  .  .  This  court  holds 
that,  in  all  such  cases,  the  transportation  or  voyage  of  the  con- 
traband goods  is  to  be  considered  as  a  unit,  from  the  port  of 

'  3  Wall,  514. 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     339 

lading  to  the  port  of  delivery  in  the  enemy's  country;  that  if 
any  part  of  such  voyage  or  transportation  be  unlawful,  it  is  un- 
lawful throughout;  and  that  the  vessel  and  her  cargo  are  subject 
to  capture;  as  well  before  arriving  at  the  first  neutral  port  at 
which  she  touches  after  her  departure  from  England,  as  on  the 
voyage  or  transportation  by  sea  from  such  neutral  port  to  the 
port  of  the  enemy."  i 

This  position  of  the  United  States,  which  has  been  so 
criticised,  is  liable  to  be  abused  to  the  disadvantage  of  neu- 
tral commerce.     The  absence  of  some  such  rule 
Position  of  the   ^^^jj  ^         ^^ie  door  to  acts  which,   though 

United  States.  ^  . 

neutral  in  form,  would  be  hostile  in  fact.  It 
seemed  necessary  to  allow  the  exercise  of  a  certain  amount  of 
supervision  over  commerce  of  neutrals  when  it  was  destined 
to  neutral  ports  having  convenient  communication  with  the 
enemy.  This  might  extend  to  the  seizure  of  neutral  vessels 
bound  for  that  port  only  in  form,  provided  there  was  no  doubt 
as  to  the  true  destination,  but  such  seizure  was  to  be  made 
with  the  greatest  care  not  to  violate  the  proper  rights  of  neu- 
trals. There  was  less  reason  for  the  general  exercise  of  this 
supervision  over  vessels  sailing  to  a  neutral  port  which  was 
separated  from  the  belligerent  territory  by  a  considerable 
expanse  of  water,  than  for  its  exercise  over  vessels  sailing  to 
a  port  which  was  separated  only  by  a  narrow  expanse  of 
water.  In  cases  where  the  neutral  port  was  upon  the  same 
land  area  with  the  belligerent  territory  and  had  easy  com- 
munication by  rail  or  otherwise,  so  that  it  might  become  a 
natural  port  of  entry  for  goods  bound  for  one  of  the  bellig- 
erents, the  other  belligerent  might  properly  exercise  a  greater 
degree  of  authority  in  the  supervision  of  commerce  than 
would  ordinarily  be  allowable.  It  was  on  this  ground  that 
England  could  justify  her  action  in  the  seizure  of  vessels 
bound  for  Delagoa  Bay  during  the  war  in  South  Africa,  in 
»  Blatchford's  Prize  Cases,  387,  405,  407;  Scott,  "Cases,"  p.  852. 


340  INTERNATIONAL  LAW 

1899-1900;  and  similarly  Italy  justified  her  seizure  of  the 
Dutch  vessel,  Doelwyk,  in  August,  1896,  during  the  Abys- 
sinian war.  This  vessel  was  bound  for  a  friendly  port,  but 
a  port  from  which  its  cargo  of  war  supplies  would  pass  over- 
land to  the  enemy  without  difficulty. 

(6)  "The  doctrnie  of  continuous  voyage  in  respect  both 
D  I      f  *y,        of   contraband   and   of   blockade"    which   had 

Rules  or  the 

Declaration  of  been  the  subject  of  so  much  controversy  was 
London,  1909.  introduced  as  one  of  the  questions  in  the  pro- 
gram of  discussion  for  the  London  Naval  Conference  in  1908- 
1909. 

The  United  States  Government  had  advanced  the  ex- 
tremest  claims  under  this  doctrine  during  the  Civil  War  of 
1861-1865.  It  was  acknowledged  that  these  claims  were 
made  under  exceptional  circumstances. 

Certain  states  had  positively  denied  the  existence  of  the 
rights  claimed  by  states  maintaining  the  doctrine  of  continu- 
ous voyage. 

The  Conference  finally  agreed  that  the  doctrine  of  con- 
tinuous voyage  might  properly  be  recognized  as  applying  to 
absolute  contraband  and  formulated  this  opinion  in  the 
Declaration  of  London,  1909,  as  follows: 

"Art.  30.  Absolute  contraband  is  hable  to  capture  if  it 
is  shown  to  be  destined  to  territory  belonging  to  or  occupied 
by  the  enemy,  or  to  the  armed  forces  of  the  enemy.  It  is  im- 
material whether  the  carriage  of  the  goods  is  direct  or  entails 
either  transhipment  or  transport  over  land." 

The  right  of  capture  was  also  extended  to  conditional  con- 
traband in  the  exceptional  case  "where  the  enemy  country 
has  no  seaboard"  and  the  conditional  contraband  is  found 
to  be  destined  for  the  armed  forces  of  the  enemy.i 

*  British  Pari.  Papers,  Misc.  No.  4  (1909),  p.  47;  Appendix,  p.  457. 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     341 

141.     Prize  and  Prize  Courts 

(a)  Prize  is  the  general  term  applied  to  captures  made  at 
sea.    The  ships  and  goods  of  an  enemy  liable  to  capture  by 

the  laws  of  war,  and  the  ships  and  goods  of  a 
neutral  when  involved  in  acts  forbidden  by  the 
laws  of  war,  may  be  brought  into  port  for  adjudication  and 
disposition.  Enemy's  goods,  except  contraband  of  war,  are 
not  liable  to  capture  on  neutral  ships.i  Certain  ships  engaged 
in  charitable  or  scientific  pursuits,  and  coast  fishing  and  trad- 
ing vessels,  are  exempt  from  capture,^  as  are  also  certain 
specially  exempted  by  treaty.  In  general  other  goods  and 
vessels  of  the  enemy  are  liable  to  capture.  Contraband  goods 
of  a  neutral,  vessels  attempting  to  violate  blockade,  vessels 
performing  unneutral  service,  or  goods  or  vessels  otherwise 
involved  in  a  way  contrary  to  the  laws  of  war  are  liable  to 
capture. 

(b)  The  National  Prize  Court  is  the  tribunal  which  deter- 
mines the  rights  of  the  parties  concerned  in  the  capture  and 

the  disposition  of  the  goods  or  vessel.  All  cap- 
National  Prize    ^^j.^g  belong  to  the  state  in  whose  name  they 

Court.  °  ..... 

are  made.  An  inchoate  title  to  the  prize  is  ac- 
quired by  possession,  but  complete  title  is  acquired  only 
after  condemnation  by  a  properly  constituted  prize  court. 

(1)  A  prize  court  may  be  established  by  the  belligerent  in 
its  own  state,  in  the  territory  where  the  belligerent  has  mili- 

taiy  jurisdiction  or  in  the  territory  of  an  ally.^ 
ing.  ^^^  establishment  of  a  court  in  neutral  juris- 
diction is  not  permitted.4  When  Genet,  the  minister  of 
France,  tried,  in  1793,  to  set  up  consular  prize  courts  in 
the  United  States,  Washington  protested  and  Genet  was 
recalled.    Takahashi  says,  "  It  is  clear  that  if  we  admit  the 

»  Appendix,  pp.  456-^57,  Articles  33,  35,  36.  '  Appendix,  p.  432. 

»  Lawrence,  §  212.  »  Appendix,  p.  445. 


342  INTERNATIONAL  LAW 

prevailing  principle  concerning  the  establishment  of  a  prize 
court  in  a  belligerent's  own  dominions  or  its  ally's,  or  in 
occupied  territory,  we  may  infer  that  a  court  can  be  held 
on  the  deck  of  a  man-of-war— a  floating  portion  of  a  terri- 
torial sovereignty— lying  in  the  above-mentioned  waters, 
provided  the  processes  of  procedure  are  followed."  i  He 
maintains,  however,  that  a  court  might  not  be  established 
on  the  high  seas,  as  proper  procedure  for  the  interested  par- 
ties would  not  be  possible. 

(2)  The  tribunals  which  have  jurisdiction  of  prize  cases 

differ  in  the  different  countries.     In  the  United 

Methods  of        gtates,  the  District  Courts  possess  the  powers 

^"''^      "         of  a  prize  court,  and  an  appeal  lies    to   the 

Supreme  Court. 2 

Dana  calls  the  prize  tribunal  an  inquest  hy  the  state,  and 
regards  it  as  the  means  by  which  the  sovereign  "  desires  and 
is  required  to  inform  himself,  by  recognized  modes,  of  the 
lawfulness  of  the  capture." 

The  methods  of  procedure  of  prize  courts  are  similar  in 
different  countries.^    The  practice  in  the  United  States  is  as 

follows : — 

The  commanding  officer  of  the  capturing  vessel,  after 
securing  the  cargo  and  documents  of  the  captured  vessel, 
makes  an  inventory  of  the  last  named,  seals  them  and>  sends 
them,  together  with  the  master,  one  or  more  of  the  other 
officers,  the  supercargo,  purser,  or  agent  of  the  prize,  and  also 
any  one  on  board  supposed  to  have  information,  under  charge 
of  a  prize  master  and  a  prize  crew,  into  port  to  be  placed  in 
the  custody  of  the  court.  The  prize  master  delivers  the 
documents  and  the  inventory  to  prize  commissioners,  who 
are  appointed  by  the  court,  and  reports  to  the  district  attor- 

'  Takahashi,  Chino-Japanese,  p.  105. 

'U.  S.  Rev.  Sts.,  §  5(53,  cl.  8;  18  St.,  316,  c.  80. 

'  Takahashi,  Russo-Japanese,  527. 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     343 

ney,  who  files  a  libel  against  the  prize  property  and  sees 
"that  the  proper  preparatory  evidence  is  taken  by  the  prize 
commissioners,  and  that  the  prize  commissioners  also  take 
the  depositions  de  bene  esse  of  the  prize  crew,  and  of  other 
transient  persons  cognizant  of  any  facts  bearing  on  con- 
denmation  or  distribution."  ^  The  libel  should  ''properly 
contain  only  a  description  of  the  prize,  with  dates,  etc.,  for 
identification,  and  the  fact  that  it  was  taken  as  prize  of  war 
by  the  cruiser,  and  brought  to  the  court  for  adjudication, 
that  is,  of  facts  enough  to  show  that  it  is  a  maritime  cause 
of  prize  jurisdiction  and  not  a  case  of  municipal  penalty  or 
forfeiture."  2  Notice  is  then  published  that  citizens  or  neu- 
trals, but  not  enemies,  interested  in  the  prize  property  shall 
appear  and  enter  their  claims.  As  there  are  no  allegations 
in  the  libel,  the  answer  of  the  claimant  is  only  a  general 
denial  under  oath.  The  prize  conrnaissioners  then  examine 
the  witnesses  privately;  and  this  evidence,  which  is  kept  in 
secret  until  complete,  is  called  in  preparatorio.^  If  the  court 
is  in  doubt  it  will  order  "further  proof,"  that  is,  besides  the 
ship,  cargo,  documents,  and  witnesses.  The  burden  is  on 
the  claimant  to  prove  title.^  If  the  claimant's  right  is  not 
sufficiently  established,  the  property  is  condemned.  The 
captors  are,  however,  liable  to  damages  if  there  is  found  no 
probable  cause  for  the  capture.^ 

(c)  It  has  been  the  general  practice  to  distribute  as  prize 
money  the  proceeds,  or  a  part  of  the  proceeds,  of  a  capture 

»U.  S.  Rev.  Sts.,  §  4618,  also  1624,  par.  16-17;  4615,  4617,  4621;  The 
"Nassau,"  4  Wall.,  634. 

» Wheat.  D.,  n.  186,  III;  U.  S.  Rev.  Sts.,  §  4622. 

»  Wheat.  D.,  n.  186,  III; The  "Springbok,"  5  Wall.,  l;The  "Sir  William 
Peel,"  ibid.,  517. 

*  Wheat.  D.,  n.  186,  III. 

'The  "La  Manche,"  2  Sprague,  207.  The  method  of  procedure  in  a 
prize  court,  in  case  of  enemy  property,  is  given  in  Appendix,  p.  469  et  seq. 
With  a  few  changes,  the  same  forms  may  be  used  in  the  case  of  neutral 
property.  See  further  on  the  method  of  procedure  in  a  prize  court,  Taka- 
hashi,  Chino-Japanese,  pp.  11  et  seq.,  73-107,  172-191. 


344  INTERNATIONAL  LAW 

among  the  captors.  This  distribution  is  a  matter  of  munic- 
ipal law.  In  England  the  sum  realized  from  the  sale  of  the 
goods  and  vessel  may  be  distributed  among  the 
captors,  though  the  crown  reserves  the  right  to 
decide  what  interest  the  captors  shall  have,  if  any.^  By  a 
royal  decree  of  June  20,  1864,  Prussia  provided  in  detail  what 
each  of  those  participating  in  the  capture  should  receive  .^ 
By  the  act  of  March  3,  1899,  the  United  States  provided  that 
"all  provisions  of  law  authorizing  the  distribution  among 
captors  of  the  whole,  or  any  portion,  of  the  proceeds  of  vessels, 
or  any  property  hereafter  captured,  condemned  as  prize,  or 
providing  for  the  payment  of  bounty  for  the  sinking  or 
destruction  of  vessels  of  the  enemy  hereafter  occurring  in 
time  of  war,  are  hereby  repealed."  ^ 

(d)  The  International  Prize  Court  was  provided  for  in  the 
The  Inter-  Hague  Conference  of  1907,  the  delegates  de- 
nationai  Prize  claring  that  they  had  concluded  the  Convention 
Court.  £^j,  ^j^^^  purpose.^ 

The  Hague  Conference  of  1907  declared  that  it  had  agreed 
upon  a  Convention  for  the  Creation  of  an  International  Prize 
Court,  "animated  by  the  desire  to  settle  in  an  equitable 
manner  the  differences  which  sometimes  arise  in  the  course 
of  a  naval  war  in  connection  with  the  decisions  of  National 
Prize  Courts." 

This  Convention  for  the  Creation  of  an  International  Prize 
Court  provides  for  exercise  of  jurisdiction  in  the  first  instance 
by  the  National  Prize  Court  and  for  appeal  to  the  International 
Prize  Court.  It  also  provides  for  the  constitution  and  pro- 
cedure of  the  court. 

Article  VII  of  this  Hague  Convention  provided  that  "in 
the  absence  of  treaty  provisions  covering  a  given  case,  the 
Court  shall  apply  the  rules  of  international  law.     If  no  gen- 

*  Lawrence,  §  212.         '  Perels,  "Manuel  Droit  Maritime  Int.,"  p.  457. 
»  30  U.  S.  Sts.  at  Large,  1007.  •  Appendix,  p.  434. 


RELATIONS  BETWEEN  STATES  AND  INDIVIDUALS     345 

erally  recognized  rule  exists,  the  Court  shall  give  judgment 
in  accordance  with  the  general  principles  of  justice  and  equity." 

Certain  states  were  uncertain  as  to  the  interpretation 
which  would  be  given  under  this  clause  of  Article  VII.  Ac- 
cordingly, on  the  invitation  of  Great  Britain,  a  conference, 
known  as  the  International  Naval  Conference,  of  ten  powers 
— Germany,  United  States,  Austria-Hungary,  Spain,  France, 
Great  Britain,  Italy,  Japan,  Netherlands,  Russia — assembled 
at  London,  December  4,  1908,  and  on  February  26,  1909,  con- 
cluded the  Declaration  of  London,  which  announces  in  the 
Preliminary  Provision  that: 

"  The  Signatory  Powers  are  agreed  that  the  rules  contained 
in  the  following  chapters  correspond  in  substance  with  the 
generally  recognized  principles  of  international  law."  ^ 

The  chapters  of  this  Declaration  are: 

1.  Blockade  in  time  of  war. 

2.  Contraband  of  war. 

3.  Unneutral  service. 

4.  Destruction  of  neutral  prizes. 

5.  Transfer  to  a  neutral  flag. 

6.  Enemy  character. 

7.  Convoy. 

8.  Resistance  to  search. 

9.  Compensation. 

Powers  not  represented  at  the  London  Naval  Conference 
are  invited  to  accede  to  the  Declaration. 

*  For  full  text  of  Declaration  of  London,  see  Appendix,  p.  450. 


APPENDICES 


APPENDIX  I 

INSTRUCTIONS   FOR  THE  GOVERNMENT  OF 

ARMIES   OF   THE    UNITED   STATES   IN 

THE   FIELD 


WAR   DEPARTMENT, 

Adjutant  General's 
No.  100.  f  Washington,  April  24,  1863. 


General  Orders,  (  Adjutant  General's  Office, 


The  following  "Instructions  for  the  Government  of  Armies  of  the 
United  States  in  the  Field,"  prepared  by  Francis  Lieber,  LL.D.,  and 
revised  by  a  Board  of  Officers,  of  which  Major  General  E.  A.  Hitchcock 
is  president,  having  been  approved  by  the  President  of  the  United  States, 
he  commands  that  they  be  published  for  the  information  of  all  concerned. 
By  order  of  the  Secretary  of  War: 

E.  D.  TOWNSEND, 
Assistant  Adjutant  General. 

INSTRUCTIONS  FOR  THE  GOVERNMENT  OF  ARMIES 
OF  THE  UNITED  STATES  IN  THE  FIELD 

SECTION  I 

Martial    Law — Military    Jurisdiction — Military    Necessity — 

Retaliation 

1 

A  place,  district,  or  country  occupied  by  an  enemy  stands,  in  con- 
sequence of  the  occupation,  under  the  Martial  Law  of  the  invading 
or  occupying  army,  whether  any  proclamation  declaring  Martial  Law, 
or  any  public  warning  to  the  inhabitants,  has  been  issued  or  not. 
Martial  Law  is  the  immediate  and  direct  effect  and  consequence  of  oc- 
cupation or  conquest. 

The  presence  of  a  hostile  army  proclaims  its  Martial  Law. 

349 


350  APPENDIX  I 


Martial  Law  does  not  cease  during  the  hostile  occupation,  except 
by  special  proclamation,  ordered  by  the  commander  in  chief;  or  by 
special  mention  in  the  treaty  of  peace  concluding  the  war,  when  the 
occupation  of  a  place  or  territory  continues  beyond  the  conclusion 
of  peace  as  one  of  the  conditions  of  the  same. 


Martial  Law  in  a  hostile  country  consists  in  the  suspension,  by  the 
occupying  military  authority,  of  the  criminal  and  civil  law,  and  of  the 
domestic  administration  and  government  in  the  occupied  place  or 
territory,  and  in  the  substitution  of  military  rule  and  force  for  the 
same,  as  well  as  in  the  dictation  of  general  laws,  as  far  as  military 
necessity  requires  this  suspension,  substitution,  or  dictation. 

The  commander  of  the  forces  may  proclaim  that  the  administration 
of  all  civil  and  penal  law  shall  continue  either  wholly  or  in  part,  as  in 
times  of  peace,  unless  otherwise  ordered  by  the  military  authority. 


Martial  Law  is  simply  military  authority  exercised  in  accordance 
with  the  laws  and  usages  of  war.  Military  oppression  is  not  Martial 
Law;  it  is  the  abuse  of  the  power  which  that  law  confers.  As  Martial 
Law  is  executed  by  military  force,  it  is  incumbent  upon  those  who 
administer  it  to  be  strictly  guided  by  the  principles  of  justice,  honor, 
and  humanity — virtues  adorning  a  soldier  even  more  than  other  men, 
for  the  very  reason  that  he  possesses  the  power  of  his  arms  against  the 
unarmed. 

5 

Martial  Law  should  be  less  stringent  in  places  and  countries  fully 
occupied  and  fairly  conquered.  Much  greater  severity  may  be  exer- 
cised in  places  or  regions  where  actual  hostilities  exist,  or  are  expected 
and  must  be  prepared  for.  Its  most  complete  sway  is  allowed — even 
in  the  commander's  own  country — when  face  to  face  with  the  enemy, 
because  of  the  absolute  necessities  of  the  case,  and  of  the  paramount 
duty  to  defend  the  country  against  invasion. 

To  save  the  country  is  paramount  to  all  other  considerations. 


All  civil  and  penal  law  shall  continue  to  take  its  usual  course  in  the 
enemy's  planes  and  territories  under  Martial  Lav/,  unless  interrupted 


APPENDIX  I  351 

or  stopped  by  order  of  the  occupying  military  power;  but  all  the 
functions  of  the  hostile  government — legislative,  executive,  or  admin- 
istrative— whether  of  a  general,  provincial,  or  local  character,  cease 
under  Martial  Law,  or  continue  only  with  the  sanction,  or,  if  deemed 
necessary,  the  participation  of  the  occupier  or  invader. 

7 

Martial  Law  extends  to  property,  and  to  persons,  whether  they  are 
subjects  of  the  enemy  or  aUens  to  that  government. 

8 

Consuls,  among  American  and  European  nations,  are  not  diplomatic 
agents.  Nevertheless,  their  offices  and  persons  will  be  subjected  to 
Martial  Law  in  cases  of  urgent  necessity  only :  their  property  and  busi- 
ness are  not  exempted.  Any  delinquency  they  commit  against  the 
established  military  rule  may  be  punished  as  in  the  case  of  any  other 
inhabitant,  and  such  punishment  furnishes  no  reasonable  ground  for 
international  complaint. 

9 

The  functions  of  Ambassadors,  Ministers,  or  other  diplomatic 
agents,  accredited  by  neutral  powers  to  the  hostile  government,  cease, 
so  far  as  regards  the  displaced  government;  but  the  conquering  or 
occupying  power  usually  recognizes  them  as  temporarily  accredited 
to  itself. 

10 

Martial  Law  affects  chiefly  the  police  and  collection  of  public  rev- 
enue and  taxes,  whether  imposed  by  the  expelled  government  or  by 
the  invader,  and  refers  mainly  to  the  support  and  efficiency  of  the 
army,  its  safety,  and  the  safety  of  its  operations. 

11 

The  law  of  war  does  not  only  disclaim  all  cruelty  and  bad  faith  con- 
cerning engagements  concluded  with  the  enemy  during  the  war,  but 
also  the  breaking  of  stipulations  solemnly  contracted  by  the  belliger- 
ents in  time  of  peace,  and  avowedly  intended  to  remain  in  force  in 
case  of  war  between  the  contracting  powers. 

It  disclaims  all  extortions  and  other  transactions  for  individual 
gain ;  all  acts  of  private  revenge,  or  connivance  at  such  acts. 

Offenses  to  the  contrary  shall  be  severely  punished,  and  especially 
so  if  committed  by  officers, 


352  APPENDIX  I 

12 

Whenever  feasible,  Martial  Law  is  carried  out  in  cases  of  individual 
offenders  by  Military  Courts ;  but  sentences  of  death  shall  be  executed 
only  with  the  approval  of  the  chief  executive,  provided  the  urgency 
of  the  case  does  not  require  a  speedier  execution,  and  then  only  with 
the  approval  of  the  chief  commander. 

13 

Military  jurisdiction  is  of  two  kinds:  First,  that  which  is  conferred 
and  defined  by  statute ;  second,  that  which  is  derived  from  the  common 
law  of  war.  Military  offenses  under  the  statute  law  must  be  tried  in 
the  manner  therein  directed ;  but  military  offenses  which  do  not  come 
within  the  statute  must  be  tried  and  punished  imder  the  common 
law  of  war.  The  character  of  the  courts  which  exercise  these  juris- 
dictions depends  upon  the  local  laws  of  each  particular  country. 

In  the  armies  of  the  United  States  the  first  is  exercised  by  courts- 
martial,  while  cases  which  do  not  come  within  the  "  Rules  and  Articles 
of  War,"  or  the  jurisdiction  conferred  by  statute  on  courts-martial, 
are  tried  by  military  commissions. 

14 

Military  necessity,  as  understood  by  modern  civilized  nations,  con- 
sists in  the  necessity  of  those  measures  which  are  indispensable  for 
securing  the  ends  of  the  war,  and  which  are  lawful  according  to  the 
modern  law  and  usages  of  war. 

15 

Military  necessity  admits  of  all  direct  destruction  of  life  or  limb  of 
armed  enemies,  and  of  other  persons  whose  destruction  is  incidentally 
unavoidable  in  the  armed  contests  of  the  war;  it  allows  of  the  captur- 
ing of  every  armed  enemy,  and  every  enemy  of  importance  to  the 
hostile  government,  or  of  peculiar  danger  to  the  captor;  it  allows  of 
all  destruction  of  property,  and  obstruction  of  the  ways  and  channels 
of  traffic,  travel,  or  communication,  and  of  all  withholding  of  sus- 
tenance or  means  of  life  from  the  enemy ;  of  the  appropriation  of  what- 
ever an  enemy's  country  affords  necessary  for  the  subsistence  and 
safety  of  the  army,  and  of  such  deception  as  does  not  involve  the 
breaking  of  good  faith  either  positively  pledged,  regarding  agreements 
entered  into  during  the  war,  or  supposed  by  the  modern  law  of  war 
to  exist.     Men  who  take  up  arms  against  one  another  in  public  war  do 


APPENDIX  I  353 

not  cease  on  this  account  to  be  moral  beings,  responsible  to  one  an- 
other and  to  God. 

16 

Mihtary  necessity  does  not  admit  of  cruelty — that  is,  the  infliction 
of  suffering  for  the  sake  of  suffering  or  for  revenge,  nor  of  maiming  or 
wounding  except  in  fight,  nor  of  torture  to  extort  confessions.  It  does 
not  admit  of  the  use  of  poison  in  any  way,  nor  of  the  wanton  devasta- 
tion of  a  district.  It  admits  of  deception,  but  disclaims  acts  of  perfidy ; 
and,  in  general,  military  necessity  does  not  include  any  act  of  hos- 
tility which  makes  the  return  to  peace  unnecessarily  diflScult. 

17 

War  is  not  carried  on  by  arms  alone.  It  is  lawful  to  starve  the  hos- 
tile belligerent,  armed  or  unarmed,  so  that  it  leads  to  the  speedier  sub- 
jection of  the  enemy. 

18 

When  a  commander  of  a  besieged  place  expels  the  noncombatants, 
in  order  to  lessen  the  number  of  those  who  consume  his  stock  of  pro- 
visions, it  is  lawful,  though  an  extreme  measure,  to  drive  them  back, 
so  as  to  hasten  on  the  surrender. 

19 

Commanders,  whenever  admissible,  inform  the  enemy  of  their  in- 
tention to  bombard  a  place,  so  that  the  noncombatants,  and  especially 
the  women  and  children,  may  be  removed  before  the  bombardment 
commences.  But  it  is  no  infraction  of  the  common  law  of  war  to  omit 
thus  to  inform  the  enemy.     Surprise  may  be  a  necessity. 

20 

Public  war  is  a  state  of  armed  hostility  between  sovereign  nations 
or  governments.  It  is  a  law  and  requisite  of  civilized  existence  that 
men  live  in  political,  continuous  societies,  forming  organized  units, 
called  states  or  nations,  whose  constituents  bear,  enjoy,  and  suffer, 
advance  and  retrograde  together,  in  peace  and  in  war. 

21 

The  citizen  or  native  of  a  hostile  country  is  thus  an  enemy,  as  one 
of  the  constituents  of  the  hostile  state  or  nation,  and  as  such  is  sub- 
jected to  the  hardships  of  the  war. 


354  APPENDIX  I 

22 

Nevertheless,  as  civilization  has  advanced  during  the  last  centuries, 
so  has  likewise  steadily  advanced,  especially  in  war  on  land,  the  distinc- 
tion between  the  private  individual  belonging  to  a  hostile  country  and 
the  hostile  country  itself,  with  its  men  in  arms.  The  principle  has 
been  more  and  more  acknowledged  that  the  unarmed  citizen  is  to  be 
spared  in  person,  property,  and  honor  as  much  as  the  exigencies  of 

war  will  admit. 

23 

Private  citizens  are  no  longer  murdered,  enslaved,  or  carried  off  to 
distant  parts,  and  the  inoffensive  individual  is  as  little  disturbed  in  his 
private  relations  as  the  commander  of  the  hostile  troops  can  afford 
to  grant  in  the  overruling  demands  of  a  vigorous  war. 

24 
The  almost  universal  rule  in  remote  times  was,  and  continues  to  be 
with  barbarous  armies,  that  the  private  individual  of  the  hostile 
country  is  destined  to  suffer  every  privation  of  liberty  and  pro- 
tection, and  every  disruption  of  family  ties.  Protection  was,  and 
still  is  with  unciviUzed  people,  the  exception. 

25 

In  modern  regular  wars  of  the  Europeans,  and  their  descendants  in 
other  portions  of  the  globe,  protection  of  the  inoffensive  citizen  of  the 
hostile  country  is  the  rule ;  privation  and  disturbance  of  private  rela- 
tions are  the  exceptions. 

26 

Commanding  generals  may  cause  the  magistrates  and  civil  officers 
of  the  hostile  country  to  take  the  oath  of  temporary  allegiance'"  or  an 
oath  of  fidelity  to  their  own  victorious  government  or  rulers,  and  they 
may  expel  every  one  who  declines  to  do  so.  But  whether  they  do  so 
or  not,  the  people  and  their  civil  officers  owe  strict  obedience  to  them 
as  long  as  they  hold  sway  over  the  district  or  country,  at  the  peril  of 
their  lives. 

27 

The  law  of  war  can  no  more  wholly  dispense  with  retaliation  than 
can  the  law  of  nations,  of  which  it  is  a  branch.  Yet  civilized  nations 
acknowledge  retaliation  as  the  sternest  feature  of  war.  A  reckless 
enemy  often  leaves  to  his  opponent  no  other  means  of  securing  him- 
self against  the  repetition  of  barbarous  outrage. 


APPENDIX  I  355 

28 

Retaliation  will,  therefore,  never  be  resorted  to  as  a  measure  of 
mere  revenge,  but  only  as  a  means  of  protective  retribution,  and  more- 
over, cautiously  and  unavoidably ;  that  is  to  say,  retaliation  shall  only 
be  resorted  to  after  careful  inquiry  into  the  real  occurrence,  and  the 
character  of  the  misdeeds  that  may  demand  retribution. 

Unjust  or  inconsiderate  retahation  removes  the  belligerents  farther 
and  farther  from  the  mitigating  rules  of  regular  war,  and  by  rapid  steps 
leads  them  nearer  to  the  internecine  wars  of  savages. 

29 

Modern  times  are  distinguished  from  earlier  ages  by  the  existence, 
at  one  and  the  same  time,  of  many  nations  and  great  governments 
related  to  one  another  in  close  intercourse. 

Peace  is  their  normal  condition ;  war  is  the  exception.  The  ultimate 
object  of  all  modern  war  is  a  renewed  state  of  peace. 

The  more  vigorously  wars  are  pursued,  the  better  it  is  for  humanity. 
Sharp  wars  are  brief. 

30 

Ever  since  the  formation  and  coexistence  of  modern  nations,  and 
ever  since  wars  have  become  great  national  wars,  war  has  come  to  be 
acknowledged  not  to  be  its  own  end,  but  the  means  to  obtain  great 
ends  of  state,  or  to  consist  in  defense  against  wrong;  and  no  conven- 
tional restriction  of  the  modes  adopted  to  injure  the  enemy  is  any 
longer  admitted;  but  the  law  of  war  imposes  many  limitations  and 
restrictions  on  principles  of  justice,  faith,  and  honor. 

SECTION  II 

Public  and  Private  Property  op  the  Enemy — Protection  op 
Persons,  and  especially  op  Women;  of  Religion,  the  Arts 
AND  Sciences — Punishment  op  Crimes  against  the  Inhabitants 
OF  Hostile  Countries 

31 
A  victorious  army  appropriates  all  public  monej^,  seizes  all  public 
movable  property  until  further  cUrection  by  its  government,  and  se- 
questers for  its  own  benefit  or  of  that  of  its  government  all  the  rev- 
enues of  real  property  belonging  to  the  hostile  government  or  nation. 
The  title  to  such  real  property  remains  in  abeyance  during  military 
occupation,  and  until  the  conquest  is  made  complete. 


356  APPENDIX  I 

32 

A  victorious  army,  by  the  martial  power  inherent  in  the  same, 
may  suspend,  change,  or  abohsh,  as  far  as  the  martial  power  extends, 
the  relations  which  arise  from  the  services  due,  according  to  the  ex- 
isting laws  of  the  invaded  country,  from  one  citizen,  subject,  or  native 
of  the  same  to  another. 

The  commander  of  the  army  must  leave  it  to  the  ultimate  treaty 
of  peace  to  settle  the  permanency  of  this  change. 

33 

It  is  no  longer  considered  lawful — on  the  contrary,  it  is  held  to  be 
a  serious  breach  of  the  law  of  war — to  force  the  subjects  of  the  enemy 
into  the  service  of  the  victorious  government,  except  the  latter  should 
proclaim,  after  a  fair  and  complete  conquest  of  the  hostile  country 
or  district,  that  it  is  resolved  to  keep  the  country,  district,  or  place 
permanently  as  its  own  and  make  it  a  portion  of  its  own  country. 

34 

As  a  general  rule,  the  property  belonging  to  churches,  to  hospitals, 
or  other  establishments  of  an  exclusively  charitable  character,  to  es- 
tablishments of  education,  or  foundations  for  the  promotion  of  knowl- 
edge, whether  public  schools,  universities,  academies  of  learning  or 
observatories,  museums  of  the  fine  arts,  or  of  a  scientific  character — 
such  property  is  not  to  be  considered  public  property  in  the  sense  of 
paragraph  31 ;  but  it  may  be  taxed  or  used  when  the  public  service 
may  require  it. 

35 

Classical  works  of  art,  libraries,  scientific  collections,  or  precious 
instruments,  such  as  astronomical  telescopes,  as  well  as  hospitals, 
must  be  secured  against  all  avoidable  injury,  even  when  they  are 
contained  in  fortified  places  whilst  besieged  or  bombarded. 

36 

If  such  works  of  art,  libraries,  collections,  or  instruments  belonging 
to  a  hostile  nation  or  government,  can  be  removed  without  injury, 
the  ruler  of  the  conquering  state  or  nation  may  order  them  to  be  seized 
and  removed  for  the  benefit  of  the  said  nation.  The  ultimate  owner- 
ship is  to  be  settled  by  the  ensuing  treaty  of  peace. 

In  no  case  sh^U  they  be  sold  or  given  away,  if  captured  by  the  ar- 


APPENDIX  I  357 

mies  of  the  United  States,  nor  shall  they  ever  be  privately  appropri- 
ated, or  wantonly  destroyed  or  injured. 

37 

The  United  States  acknowledge  and  protect,  in  hostile  countries 
occupied  by  them,  religion  and  morality;  strictly  private  property;  the 
persons  of  the  inhabitants,  especially  those  of  women ;  and  the  sacred- 
ness  of  domestic  relations.  Offenses  to  the  contrary  shall  be  rigor- 
ously punished. 

This  rule  does  not  interfere  with  the  right  of  the  victorious  invader 
to  tax  the  people  or  their  property,  to  levy  forced  loans,  to  billet  sol- 
diers, or  to  appropriate  property,  especially  houses,  lands,  boats  or 
ships,  and  churches,  for  temjiorary  and  military  uses. 

38 

Private  property,  unless  forfeited  by  crimes  or  by  offenses  of  the 
owner,  can  be  seized  only  by  way  of  military  necessity,  for  the  sup- 
port or  other  benefit  of  the  army  or  of  the  United  States. 

If  the  owner  has  not  fled,  the  commanding  officer  will  cause  re- 
ceipts to  be  given,  which  may  serve  the  spoliated  owner  to  obtain 
indemnity. 

39 

The  salaries  of  civil  officers  of  the  hostile  government  who  remain 
in  the  invaded  territory,  and  continue  the  work  of  their  office,  and 
can  continue  it  according  to  the  circumstances  arising  out  of  the  war 
— such  as  judges,  administrative  or  poUce  officers,  officers  of  city  or 
communal  governments — are  paid  from  the  public  revenue  of  the 
invaded  territory,  until  the  military  government  has  reason  wholly 
or  partially  to  discontinue  it.  Salaries  or  incomes  connected  wnth 
purely  honorary  titles  are  always  stopped. 

40 

There  exists  no  law  or  body  of  authoritative  rules  of  action  between 
hostile  armies,  except  that  branch  of  the  law  of  nature  and  nations 
which  is  called  the  law  and  usages  of  war  on  land. 

41 

All  municipal  law  of  the  ground  on  which  the  armies  stand,  or  of 
the  countries  to  which  they  belong,  is  silent  and  of  no  effect  between 
armies  in  the  field. 


358  APPENDIX  I 

42 

Slavery,  complicating  and  confounding  the  ideas  of  property  (that 
is  of  a  thing),  and  of  personality  (that  is  of  humanity),  exists  accord- 
ing to  municipal  or  local  law  only.  The  law  of  nature  and  nations  has 
never  acknowledged  it.  The  digest  of  the  Roman  law  enacts  the 
early  dictum  of  the  pagan  jurist,  that  "so  far  as  the  law  of  nature  is 
concerned,  all  men  are  equal."  Fugitives  escaping  from  a  country  in 
which  they  were  slaves,  \'illains,  or  serfs,  into  another  country,  have, 
for  centuries  past,  been  held  free  and  acknowledged  free  by  judicial 
decisions  of  European  countries,  even  though  the  municipal  law  of 
the  country  in  which  the  slave  had  taken  refuge  acknowledged  slavery 
within  its  own  dominions. 

43 

Therefore,  in  a  war  between  the  United  States  and  a  belligerent 
which  admits  of  slavery,  if  a  person  held  in  bondage  by  that  belligerent 
be  captured  by  or  come  as  a  fugitive  under  the  protection  of  the  mil- 
itary forces  of  the  United  States,  such  person  is  immediately  entitled 
to  the  rights  and  privileges  of  a  freeman.  To  return  such  person  into 
slavery  would  amount  to  enslaving  a  free  person,  and  neither  the 
United  States  nor  any  officer  under  their  authority  can  enslave  any 
human  being.  Moreover,  a  person  so  made  free  by  the  law  of  war  is 
under  the  shield  of  the  law  of  nations,  and  the  former  owner  or  State 
can  have,  by  the  law  of  postliminy,  no  belligerent  lien  or  claim  of 

service. 

44 

All  wanton  violence  committed  against  persons  in  the  invaded 
country,  all  destruction  of  property  not  commanded  by  the  author- 
ized officer,  all  robbery,  all  pillage  or  sacking,  even  after  taking  a  place 
by  main  force,  all  rape,  wounding,  maiming,  or  killing  of  such  i-nhab- 
itants,  are  prohibited  under  the  penalty  of  death,  or  such  other  severe 
punishment  as  may  seem  adequate  for  the  gravity  of  the  offense. 

A  soldier,  officer  or  private,  in  the  act  of  committing  such  violence, 
and  disobeying  a  superior  ordering  him  to  abstain  from  it,  may  be 
lawfully  killed  on  the  spot  by  such  superior. 

45 

All  captures  and  booty  belong,  according  to  the  modern  law  of  war, 
primarily  to  the  government  of  the  ca})tor. 

Prize  money,  whether  on  sea  or  land,  can  now  only  be  claimed  under 
local  law. 


APPENDIX  1  35d 

46 

Neither  officers  nor  soldiers  are  allowed  to  make  use  of  their  posi- 
tion or  power  in  the  hostile  country  for  private  gain,  not  even  for 
commercial  transactions  otherwise  legitimate.  Offenses  to  the  con- 
trary committed  by  commissioned  officers  will  be  punished  with 
cashiering  or  such  other  punishment  as  the  nature  of  the  offense  may 
require ;  if  by  soldiers,  they  shall  be  punished  according  to  the  nature 
of  the  offense. 

47 

Crimes  punishable  by  all  penal  codes,  such  as  arson,  murder,  maim- 
ing, assaults,  highway  robbery,  theft,  burglary,  fraud,  forgery,  and 
rape,  if  committed  by  an  American  soldier  in  a  hostile  country  against 
its  inhabitants,  are  not  only  punishable  as  at  home,  but  in  all  cases 
in  which  death  is  not  inflicted,  the  severer  punishment  shall  be  pre- 
ferred. 

SECTION   III 

Deserters — Prisoners  of  War — Hostages — Booty  on  the 

Battlefield 

48 

Deserters  from  the  American  Army,  having  entered  the  service  of 
the  enemy,  suffer  death  if  they  fall  again  into  the  hands  of  the  United 
States,  whether  by  capture,  or  being  delivered  up  to  the  American 
Army;  and  if  a  deserter  from  the  enemy,  having  taken  service  in  the 
Army  of  the  United  States  is  captured  by  the  enemy,  and  punished 
by  them  with  death  or  otherwise,  it  is  not  a  breach  against  the  law 
and  usages  of  war,  requiring  redress  or  retaliation. 

49 

A  prisoner  of  war  is  a  public  enemy  armed  or  attached  to  the  hos- 
tile army  for  active  aid,  who  has  fallen  into  the  hands  of  the  captor, 
either  fighting  or  wounded,  on  the  field  or  in  the  hospital,  by  indi- 
vidual surrender,  or  by  capitulation. 

All  soldiers,  of  whatever  species  of  arms ;  all  men  who  belong  to  the 
rising  en  masse  of  the  hostile  country;  all  those  who  are  attached  to 
the  army  for  its  efficiency  and  promote  directly  the  object  of  the  war, 
except  such  as  are  hereinafter  provided  for;  all  disabled  men  or  officers 
on  the  field  or  elsewhere,  if  captured;  all  enemies  who  have  thrown 


360  APPENDIX  I 

away  their  arms  and  ask  for  quarter,  are  prisoners  of  war,  and  as  such 
exposed  to  the  inconveniences  as  well  as  entitled  to  the  privileges  of  a 
prisoner  of  war. 

50 

Moreover,  citizens  who  accompany  an  army  for  whatever  purpose, 
such  as  sutlers,  editors,  or  reporters  of  journals,  or  contractors,  if  cap- 
tured, may  be  made  prisoners  of  war,  and  be  detained  as  such. 

The  monarch  and  members  of  the  reigning  hostile  family,  male  or 
female,  the  chief,  and  chief  officers  of  the  hostile  government,  its  dip- 
lomatic agents,  and  all  persons  who  are  of  particular  and  singular  use 
and  benefit  to  the  hostile  army  or  its  government,  are,  if  captured, 
on  belligerent  ground,  and  if  unprovided  with  a  safe  conduct  granted 
by  the  captor's  government,  prisoners  of  war. 

51 

If  the  people  of  that  portion  of  an  invaded  country  which  is  not 
yet  occupied  by  the  enemy,  or  of  the  whole  country,  at  the  approach 
of  a  hostile  army,  rise,  under  a  duly  authorized  levy,  en  masse  to  re- 
sist the  invader,  they  are  now  treated  as  public  enemies,  and,  if  cap- 
tured, are  prisoners  of  war. 

52 

No  beUigerent  has  the  right  to  declare  that  he  will  treat  every  cap- 
tured man  in  arms  of  a  levy  en  masse  as  a  brigand  or  bandit. 

If,  however,  the  people  of  a  country,  or  any  portion  of  the  same, 
already  occupied  by  an  army,  rise  against  it,  they  are  violators  of  the 
laws  of  war,  and  are  not  entitled  to  their  protection. 

53 

The  enemy's  chaplains,  officers  of  the  medical  staff,  apothecaries, 
hospital  nurses  and  servants,  if  they  fall  into  the  hands  of  the  Ameri- 
can Army,  are  not  prisoners  of  war,  unless  the  commander  has  reasons 
to  retain  them.  In  this  latter  case,  or  if,  at  their  own  desire,  they  are 
allowed  to  remain  with  their  captured  companions,  they  are  treated 
as  prisoners  of  war,  and  may  be  exchanged  if  the  commander  sees  fit. 

54 

A  hostage  is  a  person  accepted  as  a  pledge  for  the  fulfillment  of  an 
agreement  concluded  between  belligerents  during  the  war,  or  in  con- 
sequence of  a  war.     Hostages  are  rare  in  the  present  age. 


APPENDIX  I  361 

55 

If  a  hostage  is  accepted,  he  is  treated  like  a  prisoner  of  war,  ac- 
cording to  rank  and  condition,  as  circumstances  may  admit. 

56 

A  prisoner  of  war  is  subject  to  no  punishment  for  being  a  public 
enemy,  nor  is  any  revenge  wreaked  upon  him  by  the  intentional  in- 
fliction of  any  suffering,  or  disgrace,  by  cruel  imprisonment,  want  of 
food,  by  mutilation,  death,  or  any  other  barbarity. 

57 

So  soon  as  a  man  is  armed  by  a  sovereign  government  and  takes 
the  soldier's  oath  of  fidelity,  he  is  a  belligerent ;  his  killing,  wounding, 
or  other  warlike  acts  are  not  individual  crimes  or  offenses.  No  bellig- 
erent has  a  right  to  declare  that  enemies  of  a  certain  class,  color,  or 
condition,  when  properly  organized  as  soldiers,  will  not  be  treated  by 
him  as  public  enemies. 

58 

The  law  of  nations  knows  of  no  distinction  of  color,  and  if  an  enemy 
of  the  United  States  should  enslave  and  sell  any  captured  persons 
of  their  army,  it  would  be  a  case  for  the  severest  retaliation,  if  not 
redressed  upon  complaint. 

The  United  States  cannot  retaliate  by  enslavement ;  therefore  death 
must  be  the  retaliation  for  this  crime  against  the  law  of  nations. 

59 

A  prisoner  of  war  remains  answerable  for  his  crimes  committed 
against  the  captor's  army  or  people,  committed  before  he  was  cap- 
tured, and  for  which  he  has  not  been  punished  by  his  own  authorities. 

All  prisoners  of  war  are  liable  to  the  infliction  of  retaliatory  meas- 
ures. 

60 

It  is  against  the  usage  of  modern  war  to  resolve,  in  hatred  and 
revenge,  to  give  no  quarter.  No  body  of  troops  has  the  right  to  de- 
clare that  it  will  not  give,  and  therefore  will  not  expect,  quarter;  but 
a  commander  is  permitted  to  direct  his  troops  to  give  no  quarter,  in 
great  straits,  when  his  own  salvation  makes  it  impossible  to  cumber 
himself  with  prisoners. 


362  APPENDIX  I 

61 

Troops  that  give  no  quarter  have  no  right  to  kill  enemies  already 
disabled  on  the  ground,  or  prisoners  captured  by  other  troops. 

62 

All  troops  of  the  enemy  known  or  discovered  to  give  no  quarter  in 
f'^neral,  or  to  any  portion  of  the  army,  receive  none. 

63 

Troops  who  fight  in  the  uniform  of  their  enemies,  without  any 
plain,  striking,  and  uniform  mark  of  distinction  of  their  own,  can 
expect  no  quarter. 

64 

If  American  troops  capture  a  train  containing  uniforms  of  the  en- 
emy, and  the  commander  considers  it  advisable  to  distribute  them 
for  use  among  his  men,  some  striking  mark  or  sign  must  be  adopted 
to  distinguish  the  American  soldier  from  the  enemy. 

65 

The  use  of  the  enemy's  national  standard,  flag,  or  other  emblem  of 
nationality,  for  the  purpose  of  deceiving  the  enemy  in  battle,  is  an  act 
of  perfidy  by  which  they  lose  all  claim  to  the  protection  of  the  laws  of 
war. 

66 

Quarter  having  been  given  to  an  enemy  by  American  troops,  under 
a  misapprehension  of  his  true  character,  he  may,  nevertheless,  be  or- 
dered to  suffer  death  if,  within  three  days  after  the  battle,  it  be  dis- 
covered that  he  belongs  to  a  corps  which  gives  no  quarter. 

Si* 

67 

The  law  of  nations  allows  every  sovereign  government  to  make 
war  upon  another  sovereign  state,  and,  therefore,  admits  of  no  rules 
or  laws  different  from  those  of  regular  warfare,  regarding  the  treat- 
ment of  prisoners  of  war,  although  they  may  belong  to  the  army  of  a 
government  which  the  captor  may  consider  as  a  wanton  and  unjust 
assailant. 

68 

Modern  wars  are  not  internecine  wars,  in  which  the  killing  of  the 
enemy  is  the  object.     The  destruction  of  the  enemy  in  modern  war. 


APPENDIX  I  363 

and,  indeed,  modern  war  itself,  are  means  to  obtain  that  object  of  the 
belligerent  which  lies  beyond  the  war. 

Unnecessary  or  revengeful  destruction  of  life  is  not  lawful. 

69 

Outposts,  sentinels,  or  pickets  are  not  to  be  fired  upon,  except  to 
drive  them  in,  or  when  a  positive  order,  special  or  general,  has  been 
issued  to  that  effect. 

70 

The  use  of  poison  in  any  manner,  be  it  to  poison  wells,  or  food,  or 
arms,  is  wholly  excluded  from  modern  warfare.  He  that  uses  it  puts 
himself  out  of  the  pale  of  the  law  and  usages  of  war. 

71 

Whoever  intentionally  inflicts  additional  wounds  on  an  enemy  al- 
ready wholly  disabled,  or  kills  such  an  enemy,  or  who  orders  or  en- 
courages soldiers  to  do  so,  shall  suffer  death,  if  duly  convicted,  whether 
he  belongs  to  the  Army  of  the  United  States,  or  is  an  enemy  captured 
after  having  committed  his  misdeed. 

72 

Money  and  other  valuables  on  the  person  of  a  prisoner,  such  as 
watches  or  jewelry,  as  well  as  extra  clothing,  are  regarded  by  the 
American  Army  as  the  private  property  of  the  prisoner,  and  the  ap- 
propriation of  such  valuables  or  money  is  considered  dishonorable, 
and  is  prohibited. 

Nevertheless,  if  large  sums  are  found  upon  the  persons  of  prisoners, 
or  in  their  possession,  they  shall  be  taken  from  them,  and  the  surplus, 
after  providing  for  their  own  support,  appropriated  for  the  use  of  the 
army,  under  the  direction  of  the  commander,  unless  otherwise  ordered 
by  the  government.  Nor  can  prisoners  claim,  as  private  property, 
large  sums  found  and  captured  in  their  train,  although  they  have  been 
placed  in  the  private  luggage  of  the  prisoners. 

73 

All  officers,  when  captured,  must  surrender  their  side  arms  to  the 
captor.  They  may  be  restored  to  the  prisoner  in  marked  cases,  by 
the  commander,  to  signahze  admiration  of  his  distinguished  bravery 
or  approbation  of  his  humane  treatment  of  prisoners  before  his  cap- 


364  APPENDIX  I 

ture.     The  captured  officer  to  whom  they  may  be  restored  cannot 
wear  them  during  captivity. 

74 

A  prisoner  of  war,  being  a  public  enemy,  is  the  prisoner  of  the  gov- 
ernment, and  not  of  the  captor.  No  ransom  can  be  paid  by  a  pris- 
oner of  war  to  his  individual  captor  or  to  any  officer  in  command. 
The  government  alone  releases  captives,  according  to  rules  prescribed 
by  itself. 

75 

Prisoners  of  war  are  subject  to  confinement  or  imprisonment  such 
as  may  be  deemed  necessary  on  account  of  safety,  but  they  are  to  be 
subjected  to  no  other  intentional  suffering  or  indignity.  The  con- 
finement and  mode  of  treating  a  prisoner  may  be  varied  during  his 
captivity  according  to  the  demands  of  safety. 

76 

Prisoners  of  war  shall  be  fed  upon  plain  and  wholesome  food,  when- 
ever practicable,  and  treated  with  humanity. 

They  may  be  required  to  work  for  the  benefit  of  the  captor's  gov- 
ernment, according  to  their  rank  and  condition. 

77 

A  prisoner  of  war  who  escapes  may  be  shot  or  otherwase  killed  in  his 
flight;  but  neither  death  nor  any  other  punishment  shall  be  inflicted 
upon  him  simply  for  his  attempt  to  escape,  which  the  law  of  war  does 
not  consider  a  crime.  Stricter  means  of  security  shall  be  used  after 
an  unsuccessful  attempt  at  escape. 

If,  however,  a  conspiracy  is  discovered,  the  purpose  of  which  is  a 
united  or  general  escape,  the  conspirators  may  be  rigorously  punished, 
even  with  death;  and  capital  punishment  may  also  be  inflicted  upon 
prisoners  of  war  discovered  to  have  plotted  rebellion  against  the  au- 
thorities of  the  captors,  whether  in  union  with  fellow  prisoners  or 
other  persons. 

78 

If  prisoners  of  war,  having  given  no  pledge  nor  made  any  promise 
on  their  honor,  forcibly  or  otherwise  escape,  and  are  captured  again 
in  battle  after  having  rejoined  their  own  army,  they  shall  not  be 
punished  for  their  escape,  but  shall  be  treated  as  simple  prisoners  of 
war,  although  they  will  be  subjected  to  stricter  confinement. 


APPENDIX  I  365 

79 

Every  captured  wounded  enemy  shall  be  medically  treated,  accord- 
ing to  the  ability  of  the  medical  staff, 

80 

Honorable  men,  when  captured,  will  abstain  from  giving  to  the 
enemy  information  concerning  their  own  army,  and  the  modern  law 
of  war  permits  no  longer  the  use  of  any  violence  against  prisoners  in 
order  to  extort  the  desired  information  or  to  punish  them  for  having 
given  false  information. 

SECTION  IV 

Partisans — Armed  Enemies  not  belonging  to  the  Hostile  Army 
— Scouts — Armed  Prowlers — War-rebels 

81 

Partisans  are  soldiers  armed  and  wearing  the  uniform  of  their  army, 
but  belonging  to  a  corps  which  acts  detached  from  the  main  body  for 
the  purpose  of  making  inroads  into  the  territory  occupied  by  the  en- 
emy. If  captured,  they  are  entitled  to  all  the  privileges  of  the  pris- 
oner of  war. 

82 

Men,  or  squads  of  men,  who  commit  hostilities,  whether  by  fighting, 
or  inroads  for  destruction  or  plunder,  or  by  raids  of  any  kind,  without 
commission,  without  being  part  and  portion  of  the  organized  hostile 
army,  and  without  sharing  continuously  in  the  war,  but  who  do  so 
with  intermitting  returns  to  their  homes  and  avocations,  or  with  the 
occasional  assumption  of  the  semblance  of  peaceful  pursuits,  divesting 
themselves  of  the  character  or  appearance  of  soldiers — such  men,  or 
squads  of  men,  are  not  public  enemies,  and,  therefore,  if  captured,  are 
not  entitled  to  the  privileges  of  prisoners  of  war,  but  shall  be  treated 
summarily  as  highway  robbers  or  pirates. 

83 

Scouts,  or  single  soldiers,  if  disguised  in  the  dress  of  the  country 
or  in  the  uniform  of  the  army  hostile  to  their  own,  employed  in  obtain- 
ing information,  if  found  within  or  lurking  about  the  lines  of  the 
captor,  are  treated  as  spies,  and  suffer  death. 


366  APPENDIX  I 

84 

Armed  prowlers,  by  whatever  names  they  may  be  called,  or  persons 
of  the  enemy's  territory,  who  steal  within  the  lines  of  the  hostile  army 
for  the  purpose  of  robbing,  killing,  or  of  destroying  bridges,  roads,  or 
canals,  or  of  robbing  or  destroying  the  mail,  or  of  cutting  the  tele- 
graph wires,  are  not  entitled  to  the  privileges  of  the  prisoner  of  war. 

85 

War-rebels  are  persons  within  an  occupied  territory  who  rise  in 
arms  against  the  occupying  or  conquering  army,  or  against  the  author- 
ities established  by  the  same.  If  captured,  they  may  suffer  death, 
whether  they  rise  singly,  in  small  or  large  bands,  and  whether  called 
upon  to  do  so  by  their  own,  but  expelled,  government  or  not.  They 
are  not  prisoners  of  war;  nor  are  they  if  discovered  and  secured  before 
their  conspiracy  has  matured  to  an  actual  rising  or  armed  violence. 


SECTION  V 

Safe-conduct — Spies — War-traitors — Captured   Messengers 

86 

All  intercourse  between  the  territories  occupied  by  belligerent  ar- 
mies, whether  by  traffic,  by  letter,  by  travel,  or  in  any  other  way, 
ceases.  This  is  the  general  rule,  to  be  observed  without  special 
proclamation. 

Exceptions  to  this  rule,  whether  by  safe-conduct,  or  permission  to 
trade  on  a  small  or  large  scale,  or  by  exchanging  mails,  or  by  travel 
from  one  territory  into  the  other,  can  take  place  only  according  to 
agreement  approved  by  the  government,  or  by  the  highest  military 
authority. 

Contraventions  of  this  rule  are  highly  punishable. 

87 

Ambassadors,  and  all  other  diplomatic  agents  of  neutral  powers, 
accredited  to  the  enemy,  may  receive  safe-conducts  through  the  terri- 
tories occupied  by  the  belligerents,  unless  there  are  military  reasons 
to  the  contrary,  and  unless  they  may  reach  the  place  of  their  destina- 
tion conveniently  by  another  route.     It  implies  no  international  af- 


APPENDIX  I  367 

front  if  the  safe-conduct  is  declined.     Such  passes  are  usually  given 
by  the  supreme  authority  of  the  State  and  not  by  subordinate  officers. 

88 

A  spy  is  a  person  who  secretly,  in  disguise  or  under  false  pretense, 
seeks  information  with  the  intention  of  communicating  it  to  the 
enemy. 

The  spy  is  punishable  with  death  by  hanging  by  the  neck,  whether 
or  not  he  succeed  in  obtaining  the  information  or  in  conveying  it  to 
the  enemy. 

89 

If  a  citizen  of  the  United  States  obtains  information  in  a  legitimate 
manner,  and  betrays  it  to  the  enemy,  be  he  a  military  or  civil  officer, 
or  a  private  citizen,  he  shall  suffer  death. 

90 
A  traitor  under  the  law  of  war,  or  a  war-traitor,  is  a  person  in  a  place 
or  district  under  martial  law  who,  unauthorized  by  the  military  com- 
mander, gives  information  of  any  kind  to  the  enemy,  or  holds  inter- 
course with  him. 

91 

The  war-traitor  is  always  severely  punished.  If  his  offense  consists 
in  betraying  to  the  enemy  anything  concerning  the  condition,  safety, 
operations,  or  plans  of  the  troops  holding  or  occupying  the  place  or 
district,  his  punishment  is  death. 

92 
If  the  citizen  or  subject  of  a  country  or  place  invaded  or  conquered 
gives  information  to  his  own  government,  from  which  he  is  separated 
by  the  hostile  army,  or  to  the  army  of  his  government,  he  is  a  war- 
traitor,  and  death  is  the  penalty  of  his  offense. 

93 
All  armies  in  the  field  stand  in  need  of  guides,  and  impress  them  if 
they  cannot  obtain  them  otherwise. 

94 
No  person  having  been  forced  by  the  enemy  to  serve  as  guide  is 
punishable  for  having  done  so. 


368  APPENDIX  I 

95 

If  a  citizen  of  a  hostile  and  invaded  district  voluntarily  serves  as  a 
guide  to  the  enemy,  or  offers  to  do  so,  he  is  deemed  a  war-traitor,  and 
shall  suffer  death. 

96 

A  citizen  serving  voluntarily  as  a  guide  against  his  own  country 
commits  treason,  and  will  be  dealt  with  according  to  the  law  of  his 
country. 

97 

Guides,  when  it  is  clearly  proved  that  they  have  misled  intentionally, 
may  be  put  to  death. 

98 

All  unauthorized  or  secret  communication  with  the  enemy  is  con- 
sidered treasonable  by  the  law  of  war. 

Foreign  residents  in  an  invaded  or  occupied  territory,  or  foreign  vis- 
itors in  the  same,  can  claim  no  immunity  from  this  law.  They  may 
communicate  with  foreign  parts,  or  with  the  inhabitants  of  the  hostile 
country,  so  far  as  the  military  authority  permits,  but  no  further. 
Instant  expulsion  from  the  occupied  territory  would  be  the  very  least 
punishment  for  the  infraction  of  this  rule. 

99 

A  messenger  carrying  written  dispatches  or  verbal  messages  from 
one  portion  of  the  army,  or  from  a  besieged  place,  to  another  portion 
of  the  same  army,  or  its  government,  if  armed,  and  in  the  uniform  of  his 
army,  and  if  captured,  while  doing  so,  in  the  territory  occupied  by 
the  enemy,  is  treated  by  the  captor  as  a  prisoner  of  war.  If  not  in 
uniform,  nor  a  soldier,  the  circumstances  connected  with  his  capture 
must  determine  the  disposition  that  shall  be  made  of  him. 

100 

A  messenger  or  agent  who  attempts  to  steal  through  the  territory 
occupied  by  the  enemy,  to  further,  in  any  manner,  the  interests  of  the 
enemy,  if  captured,  is  not  entitled  to  the  privileges  of  the  prisoner  of 
war,  and  may  be  dealt  with  according  to  the  circumstances  of  the  case. 

101 

While  deception  in  war  is  admitted  as  a  just  and  necessary  means 
of  hostility,  and  is  consistent  with  honorable  warfare,  the  common 


APPENDIX  I  369 

law  of  war  allows  even  capital  punishment  for  clandestine  or  treach- 
erous attempts  to  injure  an  enemy,  because  they  are  so  dangerous, 
and  it  is  so  difficult  to  guard  against  them. 

102 

The  law  of  war,  like  the  criminal  law  regarding  other  offenses,  makes 
no  difference  on  account  of  the  difference  of  sexes,  concerning  the  spy, 
the  war-traitor,  or  the  war-rebel. 

103 

Spies,  war-traitors,  and  war-rebels  are  not  exchanged  according 
to  the  common  law  of  war.  The  exchange  of  such  persons  would  re- 
quire a  special  cartel,  authorized  by  the  government,  or,  at  a  great 
distance  from  it,  by  the  chief  commander  of  the  army  in  the  field. 

104 

A  successful  spy  or  war-traitor,  safely  returned  to  his  own  army, 
and  afterwards  captured  as  an  enemy,  is  not  subject  to  punishment 
for  his  acts  as  a  spy  or  war-traitor,  but  he  may  be  held  in  closer  cus- 
tody as  a  person  individually  dangerous. 


SECTION  VI 

Exchange  of  Prisoners — Flags  of  Truce — Abuse  of  the  Flag 
OP  Truce — Flags  of  Protection 

105 

Exchanges  of  prisoners  take  place — number  for  number — rank  for 
rank — wounded  for  wounded — with  added  condition  for  added  con- 
dition— such,  for  instance,  as  not  to  serve  for  a  certain  period. 

106 

In  exchanging  prisoners  of  war,  such  numbers  of  persons  of  inferior 
rank  may  be  substituted  as  an  equivalent  for  one  of  superior  rank  as 
may  be  agreed  upon  by  cartel,  which  requires  the  sanction  of  the  gov- 
ernment, or  of  the  commander  of  the  army  in  the  field. 

107 

A  prisoner  of  war  is  in  honor  bound  truly  to  state  to  the  captor 
his  rank;  and  he  is  not  to  assume  a  lower  rank  than  belongs  to  him, 


370  APPENDIX  I 

in  order  to  cause  a  more  advantageous  exchange,  nor  a  higher  rank, 
for  the  purpose  of  obtaining  better  treatment. 

Offenses  to  the  contrary  have  been  justly  punished  by  the  com- 
manders of  released  prisoners,  and  may  be  good  cause  for  refusing 
to  release  such  prisoners. 

108 

The  surplus  number  of  prisoners  of  war  remaining  after  an  ex- 
change has  taken  place  is  sometimes  released  either  for  the  payment 
of  a  stipulated  sum  of  money,  or,  in  urgent  cases,  of  provision,  clothing, 
or  other  necessaries. 

Such  arrangement,  however,  requires  the  sanction  of  the  highest 
authority. 

109 

The  exchange  of  prisoners  of  war  is  an  act  of  convenience  to  both 
belligerents.  If  no  general  cartel  has  been  concluded,  it  cannot  be 
demanded  by  either  of  them.  No  belligerent  is  obliged  to  exchange 
prisoners  of  war. 

A  cartel  is  voidable  as  soon  as  either  party  has  violated  it. 

110 

No  exchange  of  prisoners  shall  be  made  except  after  complete  cap- 
ture, and  after  an  accurate  account  of  them,  and  a  list  of  the  captured 
officers,  has  been  taken. 

Ill 

The  bearer  of  a  flag  of  truce  cannot  insist  upon  being  admitted. 
He  must  always  be  admitted  with  great  caution.  Unnecessary  fre- 
quency is  carefully  to  be  avoided. 

112 

If  the  bearer  of  a  flag  of  truce  offer  himself  during  an  engagement, 
he  can  be  admitted  as  a  very  rare  exception  only.  It  is  no  breach  of 
good  faith  to  retain  such  flag  of  truce,  if  admitted  during  the  engage- 
ment. Firing  is  not  required  to  cease  on  the  appearance  of  a  flag  of 
truce  in  battle. 

113 

If  the  bearer  of  a  flag  of  truce,  presenting  himself  during  an  engage- 
ment, is  killed  or  wounded,  it  furnishes  no  ground  of  complaint  what- 
ever. 


APPENDIX  I  371 

114 

If  it  be  discovered,  and  fairly  proved,  that  a  flag  of  truce  has  been 
abused  for  surreptitiously  obtaining  military  knowledge,  the  bearer 
of  the  flag  thus  abusing  his  sacred  character  is  deemed  a  spy. 

So  sacred  is  the  character  of  a  flag  of  truce,  and  so  necessary  is  its 
sacredness,  that  while  its  abuse  is  an  especially  heinous  offense,  great 
caution  is  requisite,  on  the  other  hand,  in  convicting  the  bearer  of  a 
flag  of  truce  as  a  spy. 

115 

It  is  customary  to  designate  by  certain  flags  (usually  yellow)  the 
hospitals  in  places  which  are  shelled,  so  that  the  besieging  enemy  may 
avoid  firing  on  them.  The  same  has  been  done  in  battles,  when  hos- 
pitals are  situated  within  the  field  of  the  engagement. 

116 

Honorable  belligerents  often  request  that  the  hospitals  within  the 
territory  of  the  enemy  may  be  designated,  so  that  they  may  be  spared. 

An  honorable  belligerent  allows  himself  to  be  guided  by  flags  or 
signals  of  protection  as  much  as  the  contingencies  and  the  necessities 
of  the  fight  will  permit. 

117 

It  is  justly  considered  an  act  of  bad  faith,  of  infamy  or  fiendishness, 
to  deceive  the  enemy  by  flags  of  protection.  Such  act  of  bad  faith 
may  be  good  cause  for  refusing  to  respect  such  flags. 

118 
The  besieging  belligerent  has  sometimes  requested  the  besieged  to 
designate  the  buildings  containing  collections  of  works  of  art,  scien- 
tific museums,   astronomical  observatories,  or  precious  libraries,  so 
that  their  destruction  may  be  avoided  as  much  as  possible. 


SECTION  VII 
The  Parole 

119 
Prisoners  of  war  may  be  released  from  captivity  by  exchange,  and, 
under  certain  circumstances,  also  by  parole. 


372  APPENDIX  I 

120 
The  term  "Parole"  designates  the  pledge  of  individual  good  faith 
and  honor  to  do,  or  to  omit  doing,  certain  acts  after  he  who  gives  his 
parole  shall  have  been  dismissed,  wholly  or  partially,  from  the  power 

of  the  captor. 

121 

The  pledge  of  the  parole  is  always  an  individual,  but  not  a  private 

act. 

122 

The  parole  applies  chiefly  to  prisoners  of  war  whom  the  captor  al- 
lows to  return  to  their  country,  or  to  live  in  greater  freedom  within 
the  captor's  country  or  territory,  on  conditions  stated  in  the  parole. 

123 

Release  of  prisoners  of  war  by  exchange  is  the  general  rule;  release 
by  parole  is  the  exception. 

124 

Breaking  the  parole  is  punished  with  death  when  the  person  break- 
ing the  parole  is  captured  again. 

Accurate  Usts,  therefore,  of  the  paroled  persons  must  be  kept  by 

the  belligerents. 

125 

When  paroles  are  given  and  received  there  must  be  an  exchange  of 
two  written  documents,  in  which  the  name  and  rank  of  the  paroled 
individuals  are  accurately  and  truthfully  stated. 

126 

Commissioned  officers  only  are  allowed  to  give  their  parole,  and 
they  can  give  it  only  with  the  permission  of  their  superior,  as  long  as 
a  superior  in  rank  is  within  reach. 

127 
No  noncommissioned  officer  or  private  can  give  his  parole  except 
through  an  officer.  Individual  paroles  not  given  through  an  officer 
are  not  only  void,  but  subject  the  individuals  giving  them  to  the  pun- 
ishment of  death  as  deserters.  The  only  admissible  exception  is 
where  individuals,  properly  separated  from  their  commands,  have 
suffered  long  confinement  without  the  possibility  of  being  paroled 
through  an  officer. 


APPENDIX  I  373 

128 

No  paroling  on  the  battlefield ;  no  paroling  of  entire  bodies  of  troops 
after  a  battle ;  and  no  dismissal  of  large  numbers  of  prisoners,  with  a 
general  declaration  that  they  are  paroled,  is  permitted,  or  of  any 
value. 

129 

In  capitulations  for  the  surrender  of  strong  places  or  fortified  camps 
the  commanding  officer,  in  cases  of  urgent  necessity,  may  agree  that 
the  troops  under  his  command  shall  not  fight  again  during  the  war, 
unless  exchanged. 

130 

The  usual  pledge  given  in  the  parole  is  not  to  serve  during  the  exist- 
ing war,  unless  exchanged. 

This  pledge  refers  only  to  the  active  service  in  the  field,  against  the 
paroling  beUigerent  or  his  allies  actively  engaged  in  the  same  war. 
These  cases  of  breaking  the  parole  are  patent  acts,  and  can  be  visited 
with  the  punishment  of  death ;  but  the  pledge  does  not  refer  to  internal 
service,  such  as  recruiting  or  drilling  the  recruits,  fortifying  places  not 
besieged,  quelling  civil  commotions,  fighting  against  belligerents  un- 
connected with  the  paroling  belligerents,  or  to  civil  or  diplomatic  serv- 
ice for  which  the  paroled  oflBcer  may  be  employed. 

131 

If  the  government  does  not  approve  of  the  parole,  the  paroled  officer 
must  return  into  captivity,  and  should  the  enemy  refuse  to  receive 
him,  he  is  free  of  his  parole. 

132 

A  belligerent  government  may  declare,  by  a  general  order,  whether 
it  will  allow  paroling,  and  on  what  conditions  it  will  allow  it.  Such 
order  is  communicated  to  the  enemy. 

133 

No  prisoner  of  war  can  be  forced  by  the  hostile  government  to  pa- 
role himself,  and  no  government  is  obliged  to  parole  prisoners  of  war, 
or  to  parole  all  captured  oflScers,  if  it  paroles  any.  As  the  pledging  of 
the  parole  is  an  individual  act,  so  is  paroling,  on  the  other  hand,  an 
act  of  choice  on  the  part  of  the  belligerent. 


374  APPENDIX  I 

134 

The  commander  of  an  occupying  army  may  require  of  the  civil 
officers  of  the  enemy,  and  of  its  citizens,  any  pledge  he  may  consider 
necessary  for  the  safety  or  security  of  his  army,  and  upon  their  failure 
to  give  it  he  may  arrest,  confine,  or  detain  them. 

SECTION  VIII 
Armistice — Capitulation 

135 

An  armistice  is  the  cessation  of  active  hostilities  for  a  period  agreed 
between  belligerents.  It  must  be  agreed  upon  in  writing,  and  duly 
ratified  by  the  highest  authorities  of  the  contending  parties. 

136 

If  an  armistice  be  declared,  without  conditions,  it  extends  no  fur- 
ther than  to  require  a  total  cessation  of  hostilities  along  the  front  of 
both  belligerents. 

If  conditions  be  agreed  upon,  they  should  be  clearly  expressed,  and 
must  be  rigidly  adhered  to  by  both  parties.  If  either  party  violates 
any  express  condition,  the  armistice  may  be  declared  null  and  void 
by  the  other. 

137 

An  armistice  may  be  general,  and  valid  for  all  points  and  lines  of 
the  belligerents;  or  special,  that  is,  referring  to  certain  troops  or  certain 
localities  only. 

An  armistice  may  be  concluded  for  a  definite  time ;  or  for  an  indefhiite 
time,  during  which  either  belligerent  may  resume  hostilities  on  giving 
the  notice  agreed  upon  to  the  other. 

138 
The  motives  which  induce  the  one  or  the  other  belligerent  to  con- 
clude an  armistice,  whether  it  be  expected  to  be  preliminary  to  a 
treaty  of  peace,  or  to  prepare  during  the  armistice  for  a  more  vigorous 
prosecution  of  the  war,  does  in  no  way  affect  the  character  of  the 
armistice  itself. 

139 

An  armistice  is  binding  upon  the  belligerents  from  the  day  of  the 
agreed  commencement;  but  the  officers  of  the  armies  are  responsible 


APPENDIX  I  375 

from  the  day  only  when  they  receive  official  information  of  its  exis- 
tence. 

140 

Commanding  officers  have  the  right  to  conclude  armistices  binding 
on  the  district  over  which  their  command  extends,  but  such  armistice 
is  subject  to  the  ratification  of  the  superior  authority,  and  ceases  so 
soon  as  it  is  made  known  to  the  enemy  that  the  armistice  is  not  rati- 
fied, even  if  a  certain  time  for  the  elapsing  between  giving  notice  of 
cessation  and  the  resumption  of  hostilities  should  have  been  stipulated 
for. 

141 

It  is  incumbent  upon  the  contracting  parties  of  an  armistice  to  stip- 
ulate what  intercourse  of  persons  or  traffic  between  the  inhabitants  of 
the  territories  occupied  by  the  hostile  armies  shall  be  allowed,  if  any. 

If  nothing  is  stipulated  the  intercourse  remains  suspended,  as  dur- 
ing actual  hostilities. 

142 

An  armistice  is  not  a  partial  or  a  temporary  peace;  it  is  only  the 
suspension  of  military  operations  to  the  extent  agreed  upon  by  the 
parties. 

143 

When  an  armistice  is  concluded  between  a  fortified  place  and  the 
army  besieging  it,  it  is  agreed  by  all  the  authorities  on  this  subject 
that  the  besieger  must  cease  all  extension,  perfection,  or  advance  of 
his  attacking  works  as  much  so  as  from  attacks  by  main  force. 

But  as  there  is  a  difference  of  opinion  among  martial  jurists,  whether 
the  besieged  have  the  right  to  repair  breaches  or  to  erect  new  works 
of  defense  within  the  place  during  an  armistice,  this  point  should  be 
determined  by  express  agreement  between  the  parties. 

144 

So  soon  as  a  capitulation  is  signed,  the  capitulator  has  no  right  to 
demolish,  destroy,  or  injure  the  works,  arms,  stores,  or  ammunition, 
in  his  possession,  during  the  time  which  elapses  between  the  signing 
and  the  execution  of  the  capitulation,  unless  otherwise  stipulated  in 
the  same. 

145 

When  an  armistice  is  clearly  broken  by  one  of  the  parties,  the  other 
party  is  released  from  all  obligation  to  observe  it. 


376  APPENDIX  I 

146 

Prisoners  taken  in  the  act  of  breaking  an  armistice  must  be  treated 
as  prisoners  of  war,  the  officer  alone  being  responsible  who  gives  the 
order  for  such  a  violation  of  an  armistice.  The  highest  authority  of 
the  belligerent  aggrieved  may  demand  redress  for  the  infraction  of  an 
armistice. 

147 

Belligerents  sometimes  conclude  an  armistice  while  their  pleni- 
potentiaries are  met  to  discuss  the  conditions  of  a  treaty  of  peace; 
but  plenipotentiaries  may  meet  without  a  preliminary  armistice;  in 
the  latter  case,  the  war  is  carried  on  without  any  abatement. 

SECTION  IX 

Assassination 

148 

The  law  of  war  does  not  allow  proclaiming  either  an  individual  be- 
longing to  the  hostile  army,  or  a  citizen,  or  a  subject  of  the  hostile 
government,  an  outlaw,  who  may  be  slain  without  trial  by  any  captor, 
any  more  than  the  modern  law  of  peace  allows  such  intentional  out- 
lawry; on  the  contrary,  it  abhors  such  outrage.  The  sternest  retalia- 
tion should  follow  the  murder  committed  in  consequence  of  such 
proclamation,  made  by  whatever  authority.  Civilized  nations  look 
with  horror  upon  offers  of  rewards  for  the  assassination  of  enemies  as 
relapses  into  barbarism. 

SECTION  X 
Insurrection — Civil  War — Rebellion 

149 

Insurrection  is  the  rising  of  people  in  arms  against  their  govern- 
ment, or  a  portion  of  it,  or  against  one  or  more  of  its  laws,  or  against 
an  officer  or  officers  of  the  government.  It  may  be  confined  to  mere 
armed  resistance,  or  it  may  have  greater  ends  in  view. 

150 

Ci\'il  war  is  war  between  two  or  more  portions  of  a  country  or  state, 
each  contending  for  the  mastery  of  the  whole,  and  each  claiming  to 


APPENDIX  I  377 

be  the  legitimate  government.  The  term  is  also  sometimes  appUed 
to  war  of  rebelUon,  when  the  rebellious  provinces  or  portion  of  the 
state  are  contiguous  to  those  containing  the  seat  of  government. 

151 

The  term  "rebellion"  is  applied  to  an  insurrection  of  large  extent, 
and  is  usually  a  war  between  the  legitimate  government  of  a  country 
and  portions  of  provinces  of  the  same  who  seek  to  throw  off  their  al- 
legiance to  it  and  set  up  a  government  of  their  own. 

152 

When  humanity  induces  the  adoption  of  the  rules  of  regular  war 
toward  rebels,  whether  the  adoption  is  partial  or  entire,  it  does  in  no 
way  whatever  imply  a  partial  or  complete  acknowledgment  of  their 
government,  if  they  have  set  up  one,  or  of  them,  as  an  independent 
and  sovereign  power.  Neutrals  have  no  right  to  make  the  adoption 
of  the  rules  of  war  by  the  assailed  government  toward  rebels  the 
ground  of  their  own  acknowledgment  of  the  revolted  people  as  an 
independent  power. 

153 

Treating  captured  rebels  as  prisoners  of  war,  exchanging  them,  con- 
cluding of  cartels,  capitulations,  or  other  warhke  agreements  with  them ; 
addressing  officers  of  a  rebel  army  by  the  rank  they  may  have  in  the 
same;  accepting  flags  of  truce;  or,  on  the  other  hand,  proclaiming 
martial  law  in  their  territory,  or  levying  war-taxes  or  forced  loans,  or 
doing  any  other  act  sanctioned  or  demanded  by  the  law  and  usages 
of  public  war  between  sovereign  belligerents,  neither  proves  nor  es- 
tablishes an  acknowledgment  of  the  rebellious  people,  or  of  the  gov- 
ernment which  they  may  have  erected,  as  a  public  or  sovereign  power. 
Nor  does  the  adoption  of  the  rules  of  war  toward  rebels  imply  an  en- 
gagement with  them  extending  beyond  the  limits  of  these  rules.  It 
is  victory  in  the  field  that  ends  the  strife  and  settles  the  future  rela- 
tions between  the  contending  parties. 

154 

Treating,  in  the  field,  the  rebellious  enemy  according  to  the  law 
and  usages  of  war  has  never  prevented  the  legitimate  government 
from  trj-ing  the  leaders  of  the  rebellion  or  chief  rebels  for  high  treason, 
and  from  treating  them  accordingly,  unless  they  are  included  in  a 
general  amnesty. 


378  APPENDIX  I 

155 

All  enemies  in  regular  war  are  divided  into  two  general  classes — 
that  is  to  say,  into  combatants  and  noncombatants,  or  unarmed  citi- 
zens of  the  hostile  government. 

The  military  commander  of  the  legitimate  government,  in  a  war  of 
rebellion,  distinguishes  between  the  loyal  citizen  in  the  revolted  por- 
tion of  the  country  and  the  disloyal  citizen.  The  disloyal  citizens  may 
further  be  classified  into  those  citizens  known  to  sympathize  with  the 
rebellion  without  positively  aiding  it,  and  those  who,  without  taking 
up  arms,  give  positive  aid  and  comfort  to  the  rebellious  enemy  with- 
out being  bodily  forced  thereto. 

156 

Common  justice  and  plain  expediency  require  that  the  military  com- 
mander protect  the  manifestly  loyal  citizens,  in  revolted  territories, 
against  the  hardships  of  the  war  as  much  as  the  common  misfortune 
of  all  war  admits. 

The  commander  will  throw  the  burden  of  the  war,  as  much  as  lies 
within  his  power,  on  the  disloyal  citizens,  of  the  revolted  portion  or 
province,  subjecting  them  to  a  stricter  police  than  the  noncombatant 
enemies  have  to  suffer  in  regular  war;  and  if  he  deems  it  appropriate, 
or  if  his  government  demands  of  him  that  every  citizen  shall,  by  an 
oath  of  allegiance,  or  by  some  other  manifest  act,  declare  his  fidelity 
to  the  legitimate  government,  he  may  expel,  transfer,  imprison,  or  fine 
the  revolted  citizens  who  refuse  to  pledge  themselves  anew  as  citizens 
obedient  to  the  law  and  loyal  to  the  government. 

Whether  it  is  expedient  to  do  so,  and  whether  reliance  can  be  placed 
upon  such  oaths,  the  commander  or  his  government  has  the  riglit  to 
decide. 

157 
Armed  or  unarmed  resistance  by  citizens  of  the  United  States  against 
the  lawful  movements  of  their  troops  is  levying  war  against  the  United 
States,  and  is  therefore  treason. 


APPENDIX  II 


DECLARATION   OF   PARIS 

The  Plenipotentiaries  who  signed  the  Treaty  of  Paris  of  the  thirtieth 
of  March,  one  thousand  eight  hundred  and  fifty-six,  assembled  in 
conference. 

Considering: 

That  maritime  law  in  time  of  war  has  long  been  the  subject  of  de- 
plorable disputes; 

That  the  uncertainty  of  the  law  and  of  the  duties  in  such  a  matter 
give  rise  to  differences  of  opinion  between  neutrals  and  belligerents 
which  may  occasion  serious  difficulties,  and  even  conflicts;  that  it  is 
consequently  advantageous  to  establish  a  uniform  doctrine  on  so  im- 
portant a  point ; 

That  the  Plenipotentiaries  assembled  in  Congress  at  Paris  cannot 
better  respond  to  the  intentions  by  which  their  Governments  are 
animated,  than  by  seeking  to  introduce  into  international  relations 
fixed  principles,  in  this  respect. 

The  above-mentioned  Plenipotentiaries,  being  duly  authorized, 
resolved  to  concert  among  themselves  as  to  the  means  of  attaining 
this  object ;  and  having  come  to  an  agreement,  have  adopted  the  fol- 
lowing solemn  declaration: 

1.  Privateering  is  and  remains  abolished; 

2.  The  neutral  flag  covers  enemy's  goods,  with  the  exception  of 
contraband  of  war ; 

3.  Neutral  goods,  with  the  exception  of  contraband  of  war,  are  not 
liable  to  capture  under  enemy's  flag; 

4.  Blockades,  in  order  to  be  binding,  must  be  effective — that  is  to 
say,  maintained  by  a  force  sufficient  really  to  prevent  access  to  the 
coast  of  the  enemy. 

The  Governments  of  the  undersigned  Plenipotentiaries  engage  to 
bring  the  present  Declaration  to  the  knowledge  of  the  States  which 

379 


380  APPENDIX  II 

have  not  taken  part  in  the  Congress  of  Paris,  and  to  invite  them  to 
accede  to  it. 

Convinced  that  the  maxims  which  they  now  proclaim  cannot  but 
be  received  with  gratitude  by  the  whole  world,  the  undersigned  Pleni- 
potentiaries doubt  not  that  the  efforts  of  their  Governments  to  obtain 
the  general  adoption  thereof  will  be  crowned  with  full  success. 

The  present  declaration  is  not  and  shall  not  be  binding,  except 
between  those  Powers  who  have  acceded,  or  shall  accede,  to  it. 

Done  at  Paris,  the  sixteenth  of  April,  one  thousand  eight  hundred 
and  fifty-six. 


APPENDIX  III 

CONVENTION   FOR  THE   AMELIORATION   OF  THE 

CONDITION   OF  THE   WOUNDED  IN  ARMIES 

IN  THE   FIELD.     GENEVA,   JULY  6,  1906 

(Names  of  thirty-five  States) 

Being  equally  animated  by  the  desire  to  lessen  the  inherent  evils  of 
warfare  as  far  as  is  within  their  power,  and  wishing  for  this  purpose  to 
improve  and  supplement  the  provisions  agreed  upon  at  Geneva  on 
August  22,  1864,  for  the  amelioration  of  the  condition  of  the  woimded 
in  armies  in  the  field. 

Have  decided  to  conclude  a  new  convention  to  that  effect,  and  have 
appointed  as  their  plenipotentiaries,  to  wit: 

(Names  of  delegates) 

Who,  after  having  communicated  to  each  other  their  full  powers, 
found  in  good  and  due  form,  have  agreed  on  the  following: 

(Translation) 
CHAPTER  I 

THE   SICK   AND   WOUNDED 

Article  1.  Officers,  soldiers,  and  other  persons  oflScially  attached  to 
armies  who  are  sick  or  wounded  shall  be  respected  and  cared  for,  with- 
out distinction  of  nationality,  by  the  belligerent  in  whose  power  they 
are. 

A  belligerent,  however,  when  compelled  to  leave  his  wounded  in  the 
hands  of  his  adversary,  shall  leave  with  them,  so  far  as  military  con- 
ditions permit,  a  portion  of  the  personnel  and  materiel  of  his  sanitary 
service  to  assist  in  caring  for  them. 

381 


382  APPENDIX  III 

Art.  2.  Subject  to  the  care  that  must  be  taken  of  them  under  the 
preceding  article,  the  sick  and  wounded  of  an  Army  who  fall  into  the 
power  of  the  other  belligerent  become  prisoners  of  war,  and  the  general 
rules  of  international  law  in  respect  to  prisoners  become  applicable  to 
them. 

The  belligerents  remain  free,  however,  to  mutually  agree  upon  such 
clauses,  by  way  of  exception  or  favor,  in  regard  to  sick  and  wounded 
prisoners  as  they  may  deem  proper.  They  shall  have  authority  to 
agree : 

1.  To  mutually  return  the  sick  and  wounded  left  on  the  field  of  battle 
after  an  engagement. 

2.  To  send  back  to  their  own  country  the  sick  and  wounded  who 
have  recovered,  or  who  are  in  a  condition  to  be  transported,  and  whom 
they  do  not  desire  to  retain  as  prisoners. 

3.  To  send  the  sick  and  wounded  of  the  enemy  to  a  neutral  state,  with 
its  consent  and  on  condition  that  it  shall  charge  itself  with  their  intern- 
ment until  the  close  of  hostilities. 

Art.  3.  After  every  engagement  the  belligerent  who  remains  in 
possession  of  the  field  of  battle  shall  take  measures  to  search  for  the 
wounded  and  to  protect  the  wounded  and  dead  from  spoliation  and 
ill  treatment. 

He  will  see  that  a  careful  examination  is  made  of  the  bodies  of  the 
dead  prior  to  their  interment  or  incineration. 

Art.  4.  As  soon  as  possible  each  belligerent  shall  forward  to  the 
authorities  of  their  country  or  Army  the  military  tokens,  or  badges  of 
identification,  found  upon  the  bodies  of  the  dead,  together  with  a  fist 
of  the  sick  and  wounded  taken  in  charge  by  him. 

Belligerents  will  keep  each  other  mutually  advised  of  interments  and 
transfers,  together  with  admissions  to  hospitals  and  deaths  which  occur 
among  the  sick  and  wounded  in  their  hands.  They  will  collect  all 
personal  belongings,  valuables,  letters,  etc.,  which  are  found  upon  the 
field  of  battle,  or  have  been  left  by  the  sick  or  wounded,  or  by  those 
who  have  died  in  sanitary  formations  or  other  establishments,  for 
transmission  to  interested  persons  through  the  authorities  of  their  own 
country. 

Art.  5.  Military  authority  may  make  an  appeal  to  the  charitable 
zeal  of  the  inhabitants  to  receive  and,  under  his  supervision,  to  care  for 
the  sick  and  wounded  of  the  armies,  by  granting  to  persons  responding 
to  such  appeals  special  protection  and  certain  immunities. 


APPENDIX  III  383 


CHAPTER  II 

SANITARY    FORMATIONS   AND    ESTABLISHMENTS 

Art.  6.  Movable  sanitary  formations  (i.  e.,  those  which  are  intended 
to  accompany  armies  in  the  field)  and  the  fixed  establishments  belong- 
ing to  the  sanitary  service  shall  be  protected  and  respected  by  belliger- 
ents. 

Art.  7.  The  protection  due  to  sanitary  formations  and  estabUsh- 
ments  ceases  if  they  are  used  to  commit  acts  injurious  to  the  enemy. 

Art.  8.  A  sanitary  formation  or  establishment  shall  not  be  deprived 
of  the  protection  accorded  by  article  6  by  the  fact  that : 

1.  The  personnel  of  a  formation  or  establishment  is  armed  and  uses 
its  arms  in  self-defense  or  in  defense  of  its  sick  and  wounded. 

2.  In  the  absence  of  armed  hospital  attendants,  the  formation  is 
guarded  by  an  armed  detachment  or  by  sentinels  regularly  established. 

3.  Arms  or  cartridges,  taken  from  the  wounded  and  not  yet  turned 
over  to  the  proper  authorities,  are  found  in  the  formation  or  establish- 
ment. 

CHAPTER  III 

PERSONNEL 

Art.  9.  The  personnel  exclusively  charged  with  the  removal,  trans- 
portation, and  treatment  of  the  sick  and  wounded,  as  well  as  with  the 
administration  of  sanitary  formations  and  establishments,  and  the 
chaplains  attached  to  armies  shall  be  respected  and  protected  under  all 
circumstances.  If  they  fall  into  the  hands  of  the  enemy  they  shall 
not  be  regarded  as  prisoners  of  war. 

These  provisions  apply  to  the  personnel  of  the  guard  of  sanitary 
formations  and  establishments  in  the  case  provided  for  in  section  2 
of  article  8. 

Art.  10.  The  personnel  of  volunteer  aid  societies,  duly  recognized 
and  authorized  by  their  respective  governments,  who  are  employed 
in  the  sanitary  formations  and  establishments  of  armies,  are  assimi- 
lated to  the  personnel  contemplated  in  the  preceding  article,  upon 
condition  that  the  said  personnel  shall  be  subject  to  military  laws 
and  regulations. 

Each  state  shall  make  known  to  the  other  either  in  time  of  peace  or 
at  the  opening  or  during  the   progress  of    hostilities — in  any  case^ 


384  APPENDIX  III 

before  actual  employment — the  names  of  the  societies  which  it  has 
authorized  to  render  assistance,  under  its  responsibility,  in  the  official 
sanitary  service  of  its  armies. 

Art.  11.  a  recognized  society  of  a  neutral  state  cannot  lend  the 
services  of  its  sanitary  personnel  and  formations  to  a  belligerent  except 
with  the  prior  consent  of  its  own  government  and  the  authority  of  such 
belligerent.  The  belligerent  who  has  accepted  such  assistance  is 
required  to  notify  the  enemy  before  making  any  use  thereof. 

Art,  12.  Persons  described  in  articles  9,  10,  and  11  will  continue  in 
the  exercise  of  their  functions  after  they  have  fallen  into  the  power  of 
the  enemy  and  under  his  direction. 

When  their  co-operation  is  no  longer  indispensable  they  will  be  sent 
back  to  their  army  or  country,  within  such  period  and  by  such  route 
as  may  accord  with  military  necessity. 

They  will  carry  with  them  such  effects,  instruments,  arms,  and 
horses  as  are  their  private  property. 

Art.  13.  While  they  remain  in  his  power,  the  enemy  will  secure  to 
the  personnel  mentioned  in  article  9  the  same  pay  and  allowances  to 
which  persons  of  the  same  grade  in  his  own  Army  are  entitled. 


CHAPTER  IV 

MATERIEL 

Art.  14.  Mobile  sanitary  formations  that  have  fallen  into  the  power 
of  the  enemy  shall  retain  their  materiel  and  means  of  transportation 
of  whatever  kind,  including  teams,  whatever  may  be  the  means  of 
transportation,  and  the  conducting  personnel. 

Competent  military  authority,  however,  shall  have  the  right  to 
employ  them  in  caring  for  the  sick  and  wounded.  The  restitution  of 
the  materiel  shall  take  place  in  accordance  with  the  conditions  pre- 
scribed for  the  sanitary  personnel,  and,  as  far  as  possible,  at  the  same 
time. 

Art.  15.  Buildings  and  materiel  pertaining  to  fixed  establishments 
shall  remain  subject  to  the  laws  of  war,  but  cannot  be  diverted  from 
their  use  so  long  as  they  are  necessary  for  the  sick  and  wounded, 
Commanders  of  troops  engaged  in  operations,  however,  may  use  them, 
in  case  of  important  military  necessity,  if  before  such  use,  the  sick 
and  wounded  who  are  in  them  have  been  provided  for. 

Art.  16.  The  materiel  of  aid  societies,  admitted  to  the  benefits  of 


APPENDIX  III  385 

this  convention  in  conformity  to  the  conditions  herein  prescribed,  is 
regarded  as  private  property  and,  as  such,  will  be  respected  under  all 
circumstances,  save  that  it  is  subject  to  the  right  of  requisition  by 
belligerents  in  conformity  to  the  laws  and  usages  of  war. 


CHAPTER  V 

CONVOYS    OF   EVACUATION 

Art.  17,  Convoys  of  evacuation  shall  be  treated  as  movable  sanitary 
formations  with  the  following  exceptions: 

1.  A  belligerent  intercepting  a  convoy  may,  if  required  by  military 
necessity,  break  up  such  convoy  by  charging  himself  with  the  care  of 
the  sick  and  wounded  whom  it  contains. 

2.  In  this  case  the  obligation  to  restore  the  sanitary  personnel,  as 
provided  for  in  article  12,  shall  be  extended  to  include  the  entire 
military  personnel  employed,  under  proper  authority,  in  the  trans- 
portation and  protection  of  the  convoy. 

The  obligation  to  return  the  sanitary  materiel  as  provided  for  in 
article  14  shall  apply  to  railway  trains  and  vessels  intended  for  interior 
navigation  which  have  been  especially  equipped  for  evacuation  pur- 
poses, together  with  the  equipment  of  such  vehicles,  trains,  and  vessels 
which  belong  to  the  sanitary  service. 

Military  vehicles,  with  their  teams,  other  than  those  belonging  to 
the  sanitary  service,  may  be  captured. 

Civilians  and  various  means  of  transportation  obtained  by  requisi- 
tion, including  railway  materiel  and  vessels  utilized  for  convoys,  are 
subject  to  the  general  rules  of  international  law. 


CHAPTER  VI 

DISTINCTIVE    EMBLEM 

Art.  18.  In  homage  to  Switzerland  the  heraldic  sign  of  the  red  cross 
on  a  white  ground,  formed  by  the  reversal  of  the  federal  colors,  is 
continued  as  the  emblem  and  distinctive  sign  of  the  sanitary  service  of 
armies. 

Art.  19.  This  emblem  appears  on  flags  and  brassards  as  well  as  upon 
all  materiel  appertaining  to  the  sanitary  service,  with  the  permission 
of  competent  military  authority. 


386  APPENDIX  III 

Art.  20.  The  personnel  protected  by  the  provisions  of  paragraph  1 
article  9,  and  articles  10  and  11  will  wear  attached  to  the  left  arm  a 
brassard  bearing  a  red  cross  on  a  white  ground,  which  will  be  issued 
and  stamped  by  competent  military  authority,  and  accompanied  by  a 
certificate  of  identity  in  the  case  of  persons  attached  to  the  sanitary 
service  of  armies  who  do  not  have  military  uniform. 

Art.  21.  The  distinctive  flag  of  the  convention  can  only  be  displayed, 
•with  the  consent  of  the  military  authorities  over  sanitary  formations 
and  establishments  which  the  convention  provides  shall  be  respected, 
and  with  the  consent  of  the  military  authorities.  It  shall  be  ac- 
companied by  the  national  flag  of  the  belligerent  to  whose  service  the 
formation  or  establishment  is  attached. 

Sanitary  formations  which  have  fallen  into  the  power  of  the  enemy, 
however,  shall  fly  no  other  flag  than  that  of  the  Red  Cross  so  long  as 
they  continue  in  that  situation. 

Art.  22.  Neutral  sanitary  formations  which,  under  the  conditions 
set  forth  in  article  11,  have  been  authorized  to  render  their  services 
shall  fly,  with  the  flag  of  the  convention,  the  national  flag  of  the  belliger- 
ent to  which  they  are  attached.  The  provisions  of  the  second  para- 
graph of  the  preceding  article  are  appUcable  to  them. 

Art.  23.  The  emblem  of  the  red  cross  on  a  white  ground  and  the 
words  Red  Cross  or  Geneva  Cross  may  only  be  used,  whether  in  time  of 
peace  or  war,  to  protect  or  designate  sanitary  formations  and  establish- 
ments, the  personnel  and  materiel  protected  by  the  convention. 


CHAPTER  VII 

APPLICATION   AND   EXECUTION   OF  THE   CONVENTION 

Art.  24.  The  provisions  of  the  present  convention  are  obligatory 
on  the  contracting  powers  only,  in  case  of  war  between  two  or  more  of 
them.  The  said  provisions  shall  cease  to  be  obligatory  from  the  time 
when  one  of  the  belligerent  powers  should  not  be  signatory  to  the 
convention. 

Art.  25.  The  commanders  in  chief  of  the  belligerent  armies  shall 
have  to  provide  for  the  details  of  execution  of  the  foregoing  articles, 
as  well  as  for  unforeseen  cases,  in  accordance  with  the  instructions  of 
their  respective  goverimients,  and  conformably  to  the  general  principles 
of  this  convention. 

Art.  26.  The  signatory  governments  shall  take  the  necessary  steps  to 


APPENDIX  III  387 

acquaint  their  troops,  and  particularly  the  protected  personnel,  with 
the  provisions  of  this  convention  and  to  make  them  known  to  the 
people  at  large. 

CHAPTER   VIII 

REPRESSION    OF   ABUSES   AND    INFRACTIONS 

Art.  27.  The  signatory  powers  whose  legislation  should  not  now  be 
adequate  engage  to  take  or  recommend  to  their  legislatures  such 
measures  as  may  be  necessary  to  prevent  the  use,  by  private  persons 
or  by  societies  other  than  those  upon  which  this  convention  confers  the 
right  thereto,  of  the  emblem  or  name  of  the  Red  Cross  or  Geneva  Cross, 
particularly  for  commercial  purposes  by  means  of  trade  marks  or  com- 
mercial labels. 

The  prohibition  of  the  use  of  the  emblem  or  name  in  question  shall 
take  effect  from  the  time  set  by  each  act  of  legislation  and  not  later 
than  five  years  after  this  convention  goes  into  effect.  Upon  the  said 
going  into  effect,  it  shall  be  unlawful  to  use  a  trade  mark  or  commercial 
label  contrary  to  such  prohibition. 

Art.  28.  In  the  event  of  their  military  penal  laws  being  insufficient, 
the  signatory  governments  also  engage  to  take,  or  to  recommend  to 
their  legislatures,  the  necessary  measures  to  repress,  in  time  of  war, 
individual  acts  of  pillage  and  ill  treatment  of  the  sick  and  wounded  of 
the  armies,  as  well  as  to  punish,  as  usurpations  of  military  insignia, 
the  wrongful  use  of  the  flag  and  brassard  of  the  Red  Cross  by  military 
persons  or  private  individuals  not  protected  by  the  present  convention. 

They  will  communicate  to  each  other  through  the  Swiss  Federal 
Council  the  measures  taken  with  a  view  to  such  repression,  not  later 
than  five  years  from  the  ratification  of  the  present  convention. 

GENERAL    PROVISIONS 

Art.  29.  The  present  convention  shall  be  ratified  as  soon  as  possible. 
The  ratifications  will  be  deposited  at  Berne. 

A  record  of  the  deposit  of  each  act  of  ratification  shall  be  prepared, 
of  which  a  duly  certified  copy  shall  be  sent,  through  diplomatic  chan- 
nels, to  each  of  the  contracting  powers. 

Art.  30.  The  present  convention  shall  become  operative,  as  to  each 
power,  six  months  after  the  date  of  deposit  of  its  ratification. 

Art.  31.  The  present  convention,  when  duly  ratified,  shall  supersede 


388  APPENDIX  III 

the  Convention  of  August  22,  1864,  in  the  relations  between  the  con- 
tracting states. 

The  Convention  of  1864  remains  in  force  in  the  relations  between 
the  parties  who  signed  it  but  who  should  not  also  ratify  the  present 
convention. 

Art.  32.  The  present  convention  may,  until  December  31,  proximo, 
be  signed  by  the  powers  represented  at  the  conference  which  opened  at 
Geneva  on  June  11,  1906,  as  well  as  by  the  jjowers  not  represented  at 
the  conference  who  have  signed  the  Convention  of  1864. 

Such  of  the  powers  as  shall  not  have  signed  the  present  convention 
on  or  before  December  31,  1906,  will  remain  at  liberty  to  accede  to  it 
after  that  date.  They  shall  signify  their  adhesion  in  a  written  notifica- 
tion addressed  to  the  Swiss  Federal  Council,  and  communicated  to  all 
the  contracting  powers  by  the  said  Council. 

Other  powers  may  request  to  adhere  in  the  same  manner,  but  their 
request  shall  only  be  effective  if,  within  the  period  of  one  year  from 
its  notification  to  the  Federal  Council,  such  Council  has  not  been  ad- 
vised of  any  opposition  on  the  part  of  any  of  the  contracting  powers. 

Art.  33.  Each  of  the  contracting  parties  shall  have  the  right  to 
denounce  the  present  convention.  This  denunciation  shall  only 
become  operative  one  year  after  a  notification  in  writing  shall  have 
been  made  to  the  Swiss  Federal  Council,  which  shall  forthwith  com- 
municate such  notification  to  all  the  other  contracting  parties. 

This  denunciation  shall  only  become  operative  in  respect  to  the 
power  which  has  given  it. 

In  faith  whereof  the  plenipotentiaries  have  signed  the  present  con- 
vention and  affixed  their  seals  thereto. 

Done  at  Geneva,  the  sixth  day  of  July,  one  thousand  nine  hundred 
and  six,  in  a  single  copy,  which  shall  remain  in  the  archives  of  the 
Swiss  Confederation  and  certified  copies  of  which  shall  be  delivered 
through  the  di})lomatic  channel  to  the  contracting  parties. 

[Here  follow  the  signatures.] 


APPENDIX  IV 

CONVENTION   FOR   THE   PACIFIC    SETTLEMENT   OF 
INTERNATIONAL    DISPUTES 

His  Majesty  the  Cerman  Emperor,  King  of  Prussia;  the  President 
of  the  United  States  of  America;  the  President  of  the  Argentine  Re- 
public; His  Majesty  the  Emperor  of  Austria,  King  of  Bohemia,  etc., 
and  Apostolic  King  of  Hungary;  His  Majesty  the  King  of  the  Bel- 
gians; the  President  of  the  Republic  of  Bolivia;  the  President  of  the 
Republic  of  the  United  States  of  Brazil;  His  Roj-al  Highness  the  Prince 
of  Bulgaria;  the  President  of  the  Republic  of  Chile;  His  Majesty  the 
Emperor  of  China;  the  President  of  the  Republic  of  Colombia;  the 
Provisional  Governor  of  the  Republic  of  Cuba;  His  Majesty  the  King 
of  Denmark;  the  President  of  the  Dominican  Republic;  the  President 
of  the  Repubhc  of  Ecuador;  His  Majesty  the  King  of  Spain;  the  Presi- 
dent of  the  French  Republic;  His  Majesty  the  King  of  the  United 
Kingdom  of  Great  Britain  and  Ireland  and  of  the  British  Dominions 
beyond  the  Seas,  Emperor  of  India;  His  Majesty  the  King  of  the 
Hellenes;  the  President  of  the  Republic  of  Guatemala;  the  President 
of  the  Republic  of  Haiti;  His  Majesty  the  King  of  Italy;  His  Majesty 
the  Emperor  of  Japan ;  His  Royal  Highness  the  Grand  Duke  of  Lux- 
emburg, Duke  of  Nassau ;  the  President  of  the  United  States  of  Mex- 
ico; His  Royal  Highness  the  Prince  of  Montenegro;  the  President  of 
the  Republic  of  Nicaragua;  His  Majesty  the  King  of  Norway;  the 
President  of  the  Republic  of  Panamd;  the  President  of  the  Republic 
of  Paraguay;  Her  Majesty  the  Queen  of  the  Netherlands;  the  Presi- 
dent of  the  Republic  of  Peru ;  His  Imperial  Majesty  the  Shah  of  Per- 
sia; His  Majesty  the  King  of  Portugal  and  of  the  Algarves,  etc.;  His 
Majesty  the  King  of  Roumania;  His  Majesty  the  Emperor  of  All  the 
Russias;  the  President  of  the  Republic  of  Salvador;  His  Majesty  the 
King  of  Servia;  His  Majesty  the  King  of  Siam;  His  Majesty  the  King 
of  Sweden ;  the  Swiss  Federal  Council ;  His  Majesty  the  Emperor  of  the 

3S9 


390  APPENDIX  IV 

Ottomans;  the  President  of  the  Oriental  Republic  of  Uruguay;  the 
President  of  the  United  States  of  Venezuela: 

Animated  by  the  sincere  desire  to  work  for  the  maintenance  of  the 
general  peace; 

Resolved  to  promote  by  all  the  efforts  in  their  power  the  friendly 
settlement  of  international  disputes; 

Recognizing  the  solidarity  which  unites  the  members  of  the  society 
of  civilized  nations; 

Desirous  of  extending  the  empire  of  law,  and  of  strengthening  the 
appreciation  of  international  justice ; 

Convinced  that  the  permanent  institution  of  a  Tribunal  of  Arbitra- 
tion, accessible  to  all,  in  the  midst  of  the  independent  Powers,  will 
contribute  elTectively  to  this  result; 

Having  regard  to  the  advantages  attending  the  general  and  regular 
organization  of  the  procedure  of  arbitration; 

Sharing  the  opinion  of  the  august  Initiator  of  the  International 
Peace  Conference  that  it  is  expedient  to  record  in  an  international 
Agreement  the  principles  of  equity  and  right  on  which  are  based  the 
security  of  States  and  the  welfare  of  peoples; 

Being  desirous,  with  this  object,  of  insuring  the  better  working 
in  practice  of  Commissions  of  Inquiry  and  Tribunals  of  Arbitration, 
and  of  facilitating  recourse  to  arbitration  in  cases  which  allow  of  a 
summary  procedure ; 

Have  deemed  it  necessary  to  re\ase  in  certain  particulars  and  to 
complete  the  work  of  the  First  Peace  Conference  for  the  pacific  settle- 
ment of  international  disputes; 

The  High  Contracting  Parties  have  resolved  to  conclude  a  new 
Convention  for  this  purpose,  and  have  appointed  the  following  as 
their  Plenipotentiaries : 

[Names  of  Plenipotentiaries.] 

Who,  after  having  deposited  their  full  powers,  found  in  good  and 
due  form,  have  agreed  upon  the  following: 

Title  I. — On  the  Maintenance  of  the  General  Peace 

Article  1 .  With  a  view  to  obviating,  as  far  as  possible,  recourse 
to  force  in  the  relations  between  States,  the  Contracting  Powers  agree 
to  use  their  best  efforts  to  insure  the  pacific  settlement  of  international 
differences. 


APPENDIX  IV  391 

Title  II. — On  Good  Offices  and  Mediation 

Art.  2.  In  case  of  serious  disagreement  or  dispute,  before  an  ap- 
peal to  arms,  the  Contracting  Powers  agree  to  have  recourse,  as  far 
as  circumstances  allow,  to  the  good  offices  or  mediation  of  one  or  more 
friendly  Powers. 

Art.  3.  Independently  of  this  recourse,  the  Contracting  Powers 
deem  it  expedient  and  desirable  that  one  or  more  Powers,  strangers 
to  the  dispute,  should,  on  their  own  initiative,  and  as  far  as  circum- 
stances may  allow,  offer  their  good  offices  or  mediation  to  the  States 
at  variance. 

Powers,  strangers  to  the  dispute,  have  the  right  to  offer  good  offices 
or  mediation,  even  during  the  course  of  hostilities. 

The  exercise  of  this  right  can  never  be  regarded  by  one  or  the  other 
of  the  parties  in  conflict  as  an  unfriendly  act. 

Art.  4.  The  part  of  the  mediator  consists  in  reconciling  the  op- 
posing claims  and  appeasing  the  feelings  of  resentment  which  may 
have  arisen  between  the  States  at  variance. 

Art.  5.  The  functions  of  the  mediator  are  at  an  end  when  once 
it  is  declared,  either  by  one  of  the  parties  to  the  dispute,  or  by  the 
mediator  himself,  that  the  means  of  reconciliation  proposed  by  him 
are  not  accepted. 

Art.  6.  Good  offices  and  mediation,  either  at  the  request  of  the 
parties  at  variance,  or  on  the  initiative  of  Powers  strangers  to  the 
dispute,  have  exclusively  the  character  of  advice  and  never  having 
binding  force. 

Art.  7.  The  acceptance  of  mediation  cannot,  unless  there  be  an 
agreement  to  the  contrary,  have  the  effect  of  interrupting,  delaying^ 
or  hindering  mobilization  or  other  measures  of  preparation  for  war. 

If  mediation  occurs  after  the  commencement  of  hostilities,  it  causes 
no  interruption  to  the  military  operations  in  progress,  unless  there  be 
an  agreement  to  the  contrary. 

Art.  8.  The  Contracting  Powers  are  agreed  in  recommending  the 
application,  when  circumstances  allow,  of  special  mediation  in  the 
following  form : 

In  case  of  a  serious  difference  endangering  the  peace,  the  States  at 
variance  choose  respectively  a  Power,  to  whom  they  intrust  the  mis- 
sion of  entering  into  direct  conununication  with  the  Power  chosen  on 
the  other  side,  with  the  object  of  preventing  the  rupture  of  pacific 
relations. 


392  APPENDIX  IV 

For  the  period  of  this  mandate,  the  term  of  which,  unless  otherwise 
stipulated,  cannot  exceed  thirty  days,  the  States  in  conflict  cease  from 
all  direct  communication  on  the  subject  of  the  dispute,  which  is  re- 
garded as  referred  exclusively  to  the  mediating  Powers,  who  must 
use  their  best  elTorts  to  settle  it. 

In  case  of  a  definite  rupture  of  pacific  relations,  these  Powers  are 
charged  with  the  joint  task  of  taking  advantage  of  any  opportunity 
to  restore  peace. 


Title  III. — On  International  Commissions  of  Inquiry 

Art.  9.  In  differences  of  an  international  nature  involving  neither 
honor  nor  vital  interests,  and  arising  from  a  difference  of  opinion  on 
points  of  fact,  the  Contracting  Powers  deem  it  expedient  and  desirable 
that  the  parties,  who  have  not  been  able  to  come  to  an  agreement  by 
means  of  diplomacy,  should  as  far  as  circumstances  allow,  institute  an 
International  Commission  of  Inquiry,  to  facilitate  a  solution  of  these 
differences  by  elucidating  the  facts  by  means  of  an  impartial  and  con- 
scientious investigation. 

Art.  10.  The  International  Commissions  of  Inquiry  are  consti- 
tuted by  special  agreement  between  the  parties  in  conflict. 

The  Inquiry  Convention  defines  the  facts  to  be  examined;  it 
determines  the  mode  and  time  in  which  the  Commission  is  to  be 
formed  and  the  extent  of  the  Commissioners'  powers. 

It  also  determines,  if  there  is  need,  where  the  Commission  is  to  sit, 
and  whether  it  may  remove  to  another  place,  the  language  the  Com- 
mission shall  use  and  the  languages  the  use  of  which  shall  be  author- 
ized before  it,  as  well  as  the  date  on  which  each  party  must  depesit  its 
statement  of  facts,  and,  generally  speaking,  all  the  conditions  upon 
which  the  parties  have  agreed. 

If  the  parties  consider  it  necessary  to  appoint  Assessors,  the  In- 
quiry Convention  shall  determine  the  mode  of  their  selection  and  the 
extent  of  their  powers. 

Art.  11.  If  the  Inquiry  Convention  has  not  determined  where  the 
Commission  is  to  sit,  it  will  sit  at  The  Hague. 

The  place  of  meeting,  once  fixed,  cannot  be  altered  by  the  Com- 
mission except  with  the  assent  of  the  parties. 

If  the  Inquiry  Convention  has  not  determined  what  languages  are 
to  be  employed,  the  question  shall  be  decided  by  the  Commission. 

Art.  12.     Unless  an  undertaking  is  made  to  the  contrary,  Com- 


APPENDIX  IV  393 

missions  of  Inquiry  shall  be  formed  in  the  manner  determined  by 
Articles  45  and  57  of  the  present  Convention. 

Art.  13.  Should  one  of  the  Commissioners  or  one  of  the  Assessors, 
should  there  be  any,  either  die,  or  resign,  or  be  unable  for  any  reason 
whatever  to  discharge  his  functions,  the  same  procedure  is  followed 
for  filling  the  vacancy  as  was  followed  for  appointing  him. 

Art.  14.  The  parties  are  entitled  to  appoint  special  agents  to  at- 
tend the  Commission  of  Inquiry,  whose  duty  it  is  to  represent  them  and 
to  act  as  intermediaries  between  them  and  the  Commission. 

They  are  further  authorized  to  engage  counsel  or  advocates,  ap- 
pointed by  themselves,  to  state  their  case  and  uphold  their  interests 
before  the  Commission. 

Art.  15.  The  International  Bureau  of  the  Permanent  Court  of 
Arbitration  acts  as  registry  for  the  Commissions  which  sit  at  The 
Hague,  and  it  shall  place  its  offices  and  staff  at  the  disposal  of  the 
Contracting  Powers  for  the  use  of  the  Commission  of  Inquiry. 

Art.  16.  If  the  Commission  meets  elsewhere  than  at  The  Hague, 
it  appoints  a  Secretary-General,  whose  office  serves  as  registry. 

It  is  the  function  of  the  registry,  under  the  control  of  the  President, 
to  make  the  necessary  arrangements  for  the  sittings  of  the  Commis- 
sion, the  preparation  of  the  Minutes,  and,  while  the  inquiry  lasts,  for 
the  charge  of  the  archives,  which  shall  subsequently  be  transferred  to 
the  International  Bureau  at  The  Hague. 

Art.  17.  In  order  to  facilitate  the  constitution  and  working  of 
Conunissions  of  Inquiry,  the  Contracting  Powers  recommend  the 
following  rules,  which  shall  be  applicable  to  the  inquiry  procedure 
in  so  far  as  the  parties  do  not  adopt  other  rules. 

Art.  18.  The  Commission  shall  settle  the  details  of  the  procedure 
not  covered  by  the  special  Inquiry  Convention  or  the  present  Con- 
vention, and  shall  arrange  all  the  formalities  required  for  dealing 
with  the  evidence. 

Art.  19.     On  the  inquiry  both  sides  must  be  heard. 

At  the  dates  fixed,  each  party  communicates  to  the  Commission 
and  to  the  other  party  the  statements  of  facts,  if  any,  and,  in  all  cases, 
the  instruments,  papers,  and  documents  which  it  consiflers  useful 
for  ascertaining  the  truth,  as  well  as  the  list  of  witnesses  and  experts 
whose  evidence  it  wishes  to  be  heard. 

Art.  20.  The  Commission  is  entitled,  with  the  assent  of  the  Pow- 
ers, to  move  temporarily  to  any  place  where  it  considers  it  may  be 
useful  to  have  recourse  to  this  means  of  inquiry  or  to  send  one  or 


394  APPENDIX  IV 

more  of  its  members.  Permission  must  be  obtained  from  the  State 
on  whose  territory  it  is  proposed  to  hold  the  inquiry. 

Art.  21.  Every  investigation,  and  every  examination  of  a  local- 
ity, must  be  made  in  the  presence  of  the  agents  and  counsel  of  the 
parties  or  after  they  have  been  duly  summoned. 

Art.  22.  The  Commission  is  entitled  to  ask  from  either  party  for 
such  explanations  and  information  as  it  considers  necessary. 

Art.  23.  The  parties  undertake  to  supply  the  Commission  of 
Inquiry,  as  fully  as  they  may  think  possible,  with  all  means  and  facili- 
ties necessary  to  enable  it  to  become  completely  acquainted  with,  and 
to  accurately  understand,  the  facts  in  question. 

They  undertake  to  make  use  of  the  means  at  their  disposal,  under 
their  municipal  law,  to  insure  the  appearance  of  the  witnesses  or  ex- 
perts who  are  in  their  territory  and  have  been  summoned  before  the 
Commission. 

If  the  witnesses  or  experts  are  unable  to  appear  before  the  Com- 
mission, the  parties  will  arrange  for  their  evidence  to  be  taken  before 
the  qualified  officials  of  their  own  country. 

Art.  24.  For  all  notices  to  be  served  by  the  Commission  in  the 
territory  of  a  third  Contracting  Power,  the  Conmiission  shall  apply 
direct  to  the  Government  of  the  said  Power.  The  same  rule  applies 
in  the  case  of  steps  being  taken  on  the  spot  to  procure  evidence. 

The  requests  for  this  purpose  are  to  be  executed  so  far  as  the  means 
at  the  disposal  of  the  Power  applied  to  under  its  municipal  law  allow. 
They  cannot  be  rejected  unless  the  Power  in  question  considers  they 
are  calculated  to  impair  its  sovereign  sights  or  its  safety. 

The  Commission  will  equally  be  always  entitled  to  act  through  the 
Power  on  whose  territory  it  sits. 

Art.  25.  The  witnesses  and  experts  are  summoned  on  the  request 
of  the  parties  or  by  the  Commission  of  its  own  motion,  and,  in  every 
case,  through  the  Government  of  the  State  in  whose  territory  they 
are. 

The  witnesses  are  heard  in  succession  and  separately,  in  the  pres- 
ence of  the  agents  and  counsel,  and  in  the  order  fixed  by  the  Commis- 
sion. 

Art.  26.  The  examination  of  witnesses  is  conducted  by  the  Pres- 
ident. 

The  members  of  the  Commission  may  however  put  to  each  wit- 
ness questions  which  they  consider  likely  to  throw  light  on  and 
complete  his  evidence,  or  get  information  on  any  point  concerning 


APPENDIX  IV  395 

the  witness  within  the  limits  of  what  is  necessary  in  order  to  get  at 
the  truth. 

The  agents  and  counsel  of  the  parties  may  not  interrupt  the  witness 
when  he  is  making  his  statement ;  nor  put  any  direct  question  to  him, 
but  they  may  ask  the  President  to  put  such  additional  questions  to 
the  witness  as  they  think  expedient. 

Art.  27.  The  witness  must  give  his  evidence  without  being  al- 
lowed to  read  any  written  draft.  He  may,  however,  be  permitted  by 
the  President  to  consult  notes  or  documents  if  the  nature  of  the 
facts  referred  to  necessitates  their  employment. 

Art.  28.  A  Minute  of  the  evidence  of  the  witness  is  drawn  up  forth- 
with and  read  to  the  witness.  The  latter  may  make  such  alterations 
and  additions  as  he  thinks  necessary,  which  will  be  recorded  at  the 
end  of  his  statement. 

When  the  whole  of  his  statement  has  been  read  to  the  witness,  he  is 
required  to  sign  it. 

Art.  29.  The  agents  are  authorized,  in  the  course  of  or  at  the  close 
of  the  inquiry,  to  present  in  writing  to  the  Commission  and  to  the 
other  party  such  statements,  requisitions,  or  summaries  of  the  facts 
as  they  consider  useful  for  ascertaining  the  truth. 

Art.  30.  The  Commission  considers  its  decisions  in  private  and 
the  proceedings  are  secret. 

All  questions  are  decided  by  a  majority  of  the  members  of  the  Com- 
mission. 

If  a  member  declines  to  vote,  the  fact  must  be  recorded  in  the 
Minutes. 

Art.  31.  The  sittings  of  the  Commission  are  not  public,  nor  the 
Minutes  and  documents  connected  with  the  inquiry  published  except 
in  virtue  of  a  decision  of  the  Commission  taken  with  the  consent  of 
the  parties. 

Art.  32.  After  the  parties  have  presented  all  the  explanations  and 
evidence,  and  the  witnesses  have  all  been  heard,  the  President  de- 
clares the  inquiry  terminated,  and  the  Commission  adjourns  to  delib- 
erate and  to  draw  up  its  Report. 

Art.  33.  The  Report  is  signed  by  all  the  members  of  the  Com- 
mission, 

If  one  of  the  members  refuses  to  sign,  the  fact  is  mentioned;  but 
the  validity  of  the  Report  is  not  affected. 

Art.  34.  The  Report  of  the  Commission  is  read  at  a  public  sitting, 
the  agents  and  counsel  of  the  parties  being  present  or  duly  summoned. 


396  APPENDIX  IV 

A  copy  of  the  Report  is  given  to  each  party. 

Art.  35.  The  Report  of  the  Commission  is  limited  to  a  statement 
of  facts,  and  has  in  no  way  the  character  of  an  Award.  It  leaves  to 
the  parties  entire  freedom  as  to  the  effect  to  be  given  to  the  statement. 

Art.  36.  Each  ])arty  pays  its  own  expenses  and  an  equal  share  of 
the  expenses  incurred  by  the  Commission. 

Title  IV. — On  International  Arbitration 

Chapter  I.     On  the  System  of  Arbitration 

Art.  37.  International  arbitration  has  for  its  object  the  settle- 
ment of  disputes  between  States  by  judges  of  their  own  choice,  and 
on  the  basis  of  respect  for  law. 

Recourse  to  arbitration  implies  an  engagement  to  submit  in  good 
faith  to  the  Award. 

Art.  38.  In  questions  of  a  legal  nature,  and  especially  in  the  in- 
terpretation or  application  of  International  Conventions,  arbitration 
is  recognized  by  the  Contracting  Powers  as  the  most  effective,  and  at 
the  same  time  the  most  equitable,  means  of  settling  disputes  which 
dii)lomacy  has  failed  to  settle. 

Consequently,  it  would  be  desirable  that,  in  disputes  about  the 
above-mentioned  questions,  the  Contracting  Powers  should,  if  the 
case  arose,  have  recourse  to  arbitration,  in  so  far  as  circumstances 
permit. 

Art.  39.  The  Arbitration  Convention  is  concluded  for  questions 
already  existing  or  for  questions  which  may  arise  eventually. 

It  may  embrace  any  dispute  or  only  disi)utes  of  a  certain  category. 

Art.  40.  Independently  of  general  or  private  Treaties  expressly 
stipulating  recourse  to  arbitration  as  obligatory  on  the  Contracting 
Powers,  the  said  Powers  reserve  to  themselves  the  right  of  concluding 
new  Agreements,  general  or  private,  with  a  view  to  extending  oblig- 
atory arbitration  to  all  cases  which  they  may  consider  it  possible  to 
submit  to  it. 

Chapter  II.     On  the  Permanent  Court  of  Arbitration 

Art.  41.  With  the  object  of  facilitating  an  immediate  recourse 
to  arbitration  for  international  differences,  which  it  has  not  been  pos- 
sible to  settle  by  diplomacy,  the  Contracting  Powers  undertake  to 
maintain  the  permanent  Court  of  Arbitration,  established  by  the  First 


APPENDIX  IV  397 

Peace  Conference  accessible  at  all  times  and  operating,  unless  other- 
wise stipulated  by  the  parties,  in  accordance  with  the  Rules  of  Pro- 
cedure inserted  in  the  present  Convention. 

Art.  42.  The  Permanent  Court  is  competent  for  all  arbitration 
cases,  unless  the  parties  agree  to  institute  a  special  Tribunal. 

Art.  43.  The  Permanent  Court  sits  at  The  Hague.  An  Inter- 
national Bureau  serves  as  registry  for  the  Court.  It  is  the  channel 
for  communications  relative  to  the  meetings  of  the  Court;  it  has  the 
custody  of  the  archives  and  conducts  all  the  administrative  business. 

The  Contracting  Powers  undertake  to  communicate  to  the  Bureau 
as  soon  as  possible  a  certified  copy  of  any  conditions  of  arbitration 
arrived  at  between  them,  and  of  any  award  concerning  them  delivered 
by  a  special  Tribunal. 

They  undertake  likewise  to  communicate  to  the  Bureau  the  laws, 
regulations,  and  documents  eventually  showing  the  execution  of  the 
awards  given  by  the  Court. 

Art.  44.  Each  Contracting  Power  shall  select  four  persons  at  the 
most,  of  known  competency  in  questions  of  international  law,  of  the 
highest  moral  reputation,  and  disposed  to  accept  the  duties  of  Arbi- 
trators. 

The  persons  thus  selected  are  inscribed,  as  members  of  the  Court, 
in  a  list  which  shall  be  notified  by  the  Bureau  to  all  the  Contracting 
Powers. 

Any  alteration  in  the  list  of  Arbitrators  is  brought  by  the  Bureau 
to  the  knowledge  of  the  Contracting  Powers. 

Two  or  more  Powers  may  agree  on  the  selection  in  common  of  one 
or  more  Members. 

The  same  person  may  be  selected  by  different  Powers. 

The  Members  of  the  Court  are  appointed  for  a  term  of  six  years. 
Their  appointments  can  be  renewed. 

In  case  of  the  death  or  retirement  of  a  member  of  the  Court,  his  place 
shall  be  filled  in  accordance  with  the  method  of  his  appointment.  In 
this  case  the  appointment  is  made  for  a  fresh  period  of  six  years. 

Art.  43.  When  the  Contracting  Powers  desire  to  have  recourse 
to  the  Permanent  Court  for  the  settlement  of  a  difference  that  has 
arisen  between  them,  the  Arbitrators  called  upon  to  form  the  Tribunal 
with  jurisdiction  to  decide  this  difference,  must  be  chosen  from  the 
general  list  of  members  of  the  Court. 

Failing  the  direct  agreement  of  the  parties  on  the  composition  of  the 
Arbitration  Tribunal,  the  following  course  shall  be  pursued: 


398  APPENDIX  IV 

Each  party  appoints  two  Arbitrators,  of  whom  one  only  can  be  its 
national  or  chosen  from  among  the  persons  selected  by  it  as  members 
of  the  Permanent  Court.  These  Arbitrators  together  choose  an  Um- 
pire. 

If  the  votes  are  equally  divided,  the  choice  of  the  Umpire  is  intrusted 
to  a  third  Power,  selected  by  the  parties  by  common  accord. 

If  an  agreement  is  not  arrived  at  on  this  subject,  each  party  selects 
a  different  Power,  and  the  choice  of  the  Umpire  is  made  in  concert 
by  the  Powers  thus  selected. 

If,  within  two  months'  time,  these  two  Powers  cannot  come  to  an 
agreement,  each  of  them  presents  two  candidates  taken  from  the  list 
of  members  of  the  Permanent  Court,  exclusive  of  the  members  selected 
by  the  parties  and  not  being  nationals  of  either  of  them.  Drawing 
lots  determines  which  of  the  candidates  thus  presented  shall  be  Um- 
pire. 

Art.  46.  As  soon  as  the  Tribunal  has  been  constituted,  the  parties 
notify  to  the  Bureau  their  determination  to  have  recourse  to  the 
Court,  the  text  of  their  "Compromis,"  and  the  names  of  the  Arbi- 
trators. 

The  Bureau  communicates  without  delay  to  each  Arbitrator  the 
"Compromis,"  and  the  names  of  the  other  members  of  the  Tribunal. 

The  Tribunal  assembles  on  the  date  fixed  by  the  parties.  The 
Bureau  makes  the  necessary  arrangements  for  the  meeting. 

The  Members  of  the  Tribunal,  in  the  discharge  of  their  duties  and  out 
of  their  own  country,  enjoy  diplomatic  privileges  and  immunities. 

Art.  47.  The  Bureau  is  authorized  to  place  its  offices  and  staff  at 
the  disposal  of  the  Contracting  Powers  for  the  use  of  any  special  Board 
of  Arbitration. 

The  jurisdiction  of  the  Permanent  Court  may,  within  the  conditions 
laid  down  in  the  Regulations,  be  extended  to  disputes  between  non- 
Contracting  Powers,  or  between  Contracting  Powers  and  non-Con- 
tracting Powers,  if  the  Parties  are  agreed  on  recourse  to  this  Tribunal. 

Art.  48.  The  Contracting  Powers  consider  it  their  duty,  if  a  seri- 
ous dispute  threatens  to  break  out  between  two  or  more  of  them,  to 
remind  these  latter  that  the  Permanent  Court  is  open  to  them. 

Consequently,  they  declare  that  the  fact  of  reminding  the  parties 
at  variance  of  the  provisions  of  the  present  Convention,  and  the  ad- 
vice given  to  them,  in  the  highest  interests  of  peace,  to  have  recourse 
to  the  Permanent  Court,  can  only  be  regarded  as  friendly  actions. 

In  case  of  dispute  between  two  Powers,  one  of  them  can  always 


APPENDIX  IV  399 

address  to  the  International  Bureau  a  note  containing  a  declaration 
that  it  would  be  ready  to  submit  the  dispute  to  arbitration. 

The  Bureau  must  at  once  inform  the  other  Power  of  the  declaration. 

Art.  49.  The  Permanent  Administrative  Council,  composed  of 
the  Diplomatic  Representatives  of  the  Contracting  Powers  accredited 
to  The  Hague  and  of  the  Netherland  Minister  for  Foreign  Affairs, 
who  acts  as  President,  is  charged  with  the  direction  and  control  of  the 
International  Bureau. 

The  Council  settles  its  Rules  of  Procedure  and  all  other  necessary 
Regulations. 

It  decides  all  questions  of  administration  which  may  arise  with  re- 
gard to  the  operations  of  the  Court. 

It  has  entire  control  over  the  appointment,  suspension  or  dismissal 
of  the  officials  and  employes  of  the  Bureau. 

IL  fixes  the  payments  and  salaries,  and  controls  the  general  expendi- 
ture. 

At  meetings  duly  summoned  the  presence  of  nine  members  is  suf- 
ficient to  render  valid  the  discussions  of  the  Council.  The  decisions 
are  taken  by  a  majority  of  votes. 

The  Council  communicates  to  the  Contracting  Powers  without  de- 
lay the  Regulations  adopted  by  it.  It  furnishes  them  with  an  annual 
Report  on  the  labors  of  the  Court,  the  working  of  the  administration, 
and  the  expenses.  The  Report  likewise  contains  a  resume  of  what  is 
important  in  the  documents  communicated  to  the  Bureau  by  the 
Powers  in  virtue  of  Article  43,  paragraphs  3  and  4. 

Art.  50.  The  expenses  of  the  Bureau  shall  be  borne  by  the  Con- 
tracting Powers  in  the  proportion  fixed  for  the  International  Bureau 
of  the  Universal  Postal  Union. 

The  expenses  to  be  charged  to  the  adhering  Powers  shall  be  reck- 
oned from  the  date  on  which  their  adhesion  comes  into  force. 

Chapter  III.     On  Arbitral  Procedure 

Art.  51.  With  a  view  to  encourage  the  development  of  arbitra- 
tion, the  Contracting  Powers  have  agreed  on  the  following  Rules 
which  shall  be  applicable  to  arbitral  procedure,  unless  other  rules  have 
been  agreed  on  by  the  parties. 

Art.  52.  The  Powers  which  have  recourse  to  arbitration  sign  a 
"Compromis,"  in  which  the  subject  of  the  dispute  is  clearly  defined, 
the  time  allowed  for  appointing  Arbitrators,  the  form,  order,  and  time 


400  APPENDIX  IV 

in  which  the  commiinication  referred  to  in  Article  63  must  be  made, 
and  the  amount  of  the  sum  which  each  party  must  deposit  in  advance 
to  defray  the  expenses. 

The  "Compromis"  Ukewise  defines,  if  there  is  occasion,  the  manner 
of  appointing  Arbitrators,  any  special  powers  wliich  may  eventually 
belong  to  the  Tribunal,  where  it  shall  meet,  the  language  it  shall  use, 
and  the  languages  the  employment  of  which  shall  be  authorized  before 
it,  and,  generally  speaking,  all  the  conditions  on  which  the  parties  are 
agreed. 

Art.  53.  The  Permanent  Court  is  competent  to  settle  the  "Com- 
promis," if  the  parties  are  agreed  to  have  recourse  to  it  for  the  purpose. 

It  is  similarly  competent,  even  if  the  request  is  only  made  by  one 
of  the  parties,  when  all  attempts  to  reach  an  understanding  through 
the  diplomatic  channel  have  failed,  in  the  case  of: 

1.  A  dispute  covered  by  a  general  Treaty  of  Arbitration  concluded 
or  renewed  after  the  present  Convention  has  come  into  force,  and  pro- 
viding for  a  "Compromis"  in  all  disputes  and  not  either  expUcitly  or 
implicitly  excluding  the  settlement  of  the  "Compromis"  from  the 
competence  of  the  Court.  Recourse  cannot,  however,  be  had  to  the 
Court  if  the  other  party  declares  that  in  its  opinion  the  dispute  does 
not  belong  to  the  category  of  disputes  which  can  be  submitted  to  com- 
pulsory arbitration,  unless  the  Treaty  of  Arbitration  confers  upon  the 
Arbitration  Tribunal  the  power  of  deciding  this  preliminary  question. 

2.  A  dispute  arising  from  contract  debts  claimed  from  one  Power 
by  another  Power  as  due  to  its  nationals,  and  for  the  settlement  of 
which  the  offer  of  arbitration  has  been  accepted.  This  arrangement 
is  not  applicable  if  acceptance  is  subject  to  the  condition  that  the 
"Compromis"  should  be  settled  in  some  other  way. 

Art.  54.  In  the  cases  contemplated  in  the  preceding  Article,  the 
"Compromis"  shall  be  settled  by  a  Commission  consisting  of  five 
members  selected  in  the  manner  arranged  for  in  Article  45,  paragraphs 
3  to  6. 

The  fifth  member  is  President  of  the  Commission  ex  officio. 

Art.  55.  The  duties  of  Arbitrator  may  be  conferred  on  one  Arbi- 
trator alone  or  on  several  Arbitrators  selected  by  the  parties  as  they 
please,  or  chosen  by  them  from  the  members  of  the  Permanent  Court 
of  Arbitration  established  by  the  present  Convention. 

Failing  the  constitution  of  the  Tribunal  by  direct  agreement  between 
the  parties,  the  course  referred  to  in  Article  45,  paragraphs  3  to  6,  is 
followed. 


APPENDIX  IV  401 

Art.  56.  When  a  Sovereign  or  the  Chief  of  a  State  is  chosen  as 
Arbitrator,  the  arbitral  procedure  is  settled  by  him. 

Art.  57.     The  Umpire  is  President  of  the  Tribunal  ex  officio. 

When  the  Tribunal  does  not  include  an  Umpire,  it  appoints  its  own 
President. 

Art.  58.  When  the  "Compromis"  is  settled  by  a  Commission,  as 
contemplated  in  Article  54,  and  in  the  absence  of  an  agreement  to  the 
contrary,  the  Commission  itself  shall  form  the  Arbitration  Tribunal. 

Art.  59.  In  case  of  the  death,  retirement,  or  disability  from  any 
cause  of  one  of  the  Arbitrators,  his  place  shall  be  filled  in  accordance 
with  the  method  of  his  appointment. 

Art.  60.  The  Tribunal  sits  at  The  Hague,  unless  some  other  place 
is  selected  by  the  parties. 

The  Tribunal  may  only  sit  in  the  territory  of  a  third  Power  with  the 
latier's  consent. 

The  place  of  meeting  once  fixed  cannot  be  altered  by  the  Tribunal, 
except  with  the  consent  of  the  parties. 

Art.  61.  If  the  "Compromis"  has  not  determined  what  languages 
are  to  be  used,  it  shall  be  decided  by  the  Tribunal. 

Art.  62.  The  parties  are  entitled  to  appoint  special  agents  to  at- 
tend the  Tribunal,  for  the  purpose  of  serving  as  intermediaries  between 
themselves  and  the  Tribunal. 

They  are  further  authorized  to  retain,  for  the  defense  of  their  rights 
and  interests  before  the  Tribunal,  counsel  or  advocates  appointed  by 
them  for  this  purpose. 

The  members  of  the  Permanent  Court  may  not  act  as  agents,  coun- 
sel, or  advocates  except  on  behalf  of  the  Power  which  appointed  them 
members  of  the  Court. 

Art.  63.  As  a  general  rule  the  arbitral  procedure  comprises  two 
distinct  phases :  written  pleadings  and  oral  discussions. 

The  pleadings  consist  in  the  communication  by  the  respective  agents 
to  the  members  of  the  Tribunal  and  the  opposing  party,  of  cases,  coun- 
ter-cases, and,  if  necessary,  of  replies;  the  parties  annex  thereto  all 
papers  and  documents  relied  on  in  the  case.  This  communication 
shall  be  made  either  directly  or  through  the  intermediary  of  the  Inter- 
national Bureau,  in  the  order  and  within  the  time  fixed  by  the  "Com- 
promis." 

The  time  fixed  by  the  "Compromis"  may  be  extended  by  mutual 
agreement  by  the  parties,  or  by  the  Tribunal  when  the  latter  considers 
it  necessary  for  the  purpose  of  reaching  a  just  decision. 


402  APPENDIX  IV 

Discussion  consists  in  the  oral  development  before  the  Tribunal  of 
the  arguments  of  the  parties. 

Aet.  64.  A  duly  certified  copy  of  every  docimient  produced  by  one 
party  must  be  communicated  to  the  other  party. 

Art.  65.  Unless  special  circumstances  arise,  the  Tribunal  does  not 
meet  until  the  pleadings  are  closed. 

Art.  66.     The  discussions  are  under  the  control  of  the  President. 

They  are  only  public  if  it  be  so  decided  by  the  Tribunal,  with  the 
assent  of  the  parties. 

They  are  recorded  in  minutes  drawn  up  by  the  Secretaries  ap- 
pointed by  the  President.  These  minutes  are  signed  by  the  Presi- 
dent and  by  one  of  the  Secretaries  and  alone  have  an  authentic 
character. 

Art.  67.  After  the  close  of  the  pleadings,  the  Tribunal  has  the 
right  to  refuse  discussion  of  all  new  papers  or  documents  which  one 
party  may  desire  to  submit  to  it  without  the  consent  of  the  other 
party. 

Art.  68.  The  Tribunal  is  free  to  take  into  consideration  new  pa- 
pers or  documents  to  which  its  attention  may  be  drawn  by  the  agents 
or  counsel  of  the  parties. 

In  this  case,  the  Tribunal  has  the  right  to  require  the  production  of 
these  Acts  or  documents,  but  is  obliged  to  make  them  known  to  the 
opposite  party. 

Art.  69.  The  Tribunal  may,  besides,  require  from  the  agents  of 
the  parties  the  production  of  all  papers,  and  can  demand  all  necessary 
explanations.     In  case  of  refusal,  the  Tribunal  takes  note  of  it. 

Art.  70.  The  agents  and  the  counsel  of  the  parties  are  authorized 
to  present  orally  to  the  Tribunal  all  the  arguments  they  may  think 
expedient  in  defense  of  their  case. 

Art.  71.  They  are  entitled  to  raise  objections  and  points.  The 
decisions  of  the  Tribunal  on  those  points  are  final,  and  cannot  form 
the  subject  of  any  subsequent  discussion. 

Art.  72.  The  members  of  the  Tribunal  are  entitled  to  put  ques- 
tions to  the  agents  and  counsel  of  the  parties,  and  to  demand  explana- 
tions from  them  on  doubtful  points. 

Neither  the  questions  put  nor  the  remarks  made  by  members  of  the 
Tribunal  during  the  discussions  can  be  regarded  as  an  expression  of 
opinion  by  the  Tribunal  in  general,  or  by  its  members  in  particular. 

Art.  73.  The  Tribunal  is  authorized  to  declare  its  competence  in 
interpreting  the  "Compromis"  as  well  as  the  other  acts  and  docu- 


APPENDIX  IV  403 

ments  which  may  be  invoked  in  the  case,  and  in  applying  the  princi- 
ples of  law. 

Art.  74.  The  Tribunal  is  entitled  to  issue  Rules  of  Procedure  for 
the  conduct  of  the  case,  to  decide  the  forms,  order  and  time  in  which 
each  party  must  conclude  its  arguments,  and  to  arrange  all  the  for- 
mahties  required  for  dealing  with  the  evidence. 

Art.  75.  The  parties  imdertake  to  supply  the  Tribunal,  as  fully  as 
they  consider  possible,  with  all  the  information  required  for  deciding 
the  case. 

Art.  76.  For  all  notices  which  the  Tribunal  has  to  serve  in  the 
territory  of  a  third  Contracting  Power,  the  Tribunal  shall  apply  direct 
to  the  Government  of  that  Power.  The  same  rule  applies  in  the  case 
of  steps  being  taken  to  procure  evidence  on  the  spot. 

The  requests  for  this  purpose  are  to  be  executed  as  far  as  the  means 
at  the  disposal  of  the  Power  applied  to  under  its  municipal  law  allow. 
They  cannot  be  rejected  unless  the  Power  in  question  considers  them 
calculated  to  impair  its  own  sovereign  rights  or  its  safety. 

The  Tribunal  will  equally  be  always  entitled  to  act  through  the 
Power  on  whose  territory  it  sits. 

Art.  77.  When  the  agents  and  counsel  of  the  parties  have  sub- 
mitted all  ex]:)lanations  and  evidence  in  support  of  their  case,  the  Pres- 
ident pronounces  the  discussion  closed. 

Art.  78.  The  deliberations  of  the  Tribunal  take  place  in  private 
and  the  proceedings  remain  secret.  Every  decision  is  taken  by  a  ma- 
jority of  members  of  the  Tribunal. 

Art.  79.  The  award  is  accompanied  by  a  statement  of  reasons. 
It  contains  the  names  of  the  Arbitrators;  it  is  signed  by  the  President 
and  Registrar  or  by  the  Secretary  acting  as  Registrar. 

Art.  80.  The  award  is  read  out  at  a  public  meeting  of  the  Tri- 
bunal, the  agents  and  counsel  of  the  parties  being  present,  or  duly 
summoned  to  attend. 

Art.  81.  The  award,  duly  pronounced  and  notified  to  the  agents 
of  the  parties,  puts  an  end  to  the  dispute  definitely  and  without  ap- 
peal. 

Art.  82.  Any  dispute  arising  between  the  parties  as  to  the  inter- 
pretation and  execution  of  the  Award  shall,  in  the  absence  of  an  agree- 
ment to  the  contrary,  be  submitted  to  the  Tribunal  which  pronounced 
it. 

Art.  83.  The  parties  may  reserve  in  the  "Compromis"  the  right 
to  demand  the  revision  of  the  award. 


404  APPENDIX  IV 

In  this  case,  and  unless  there  be  an  agreement  to  the  contrary,  the 
demand  must  be  addressed  to  the  Tribunal  which  pronounced  the 
award.  It  can  only  be  made  on  the  ground  of  the  discovery  of  some 
new  fact  calculated  to  exercise  a  decisive  influence  on  the  award,  and 
which,  at  the  time  the  discussion  was  closed,  was  unknown  to  the  Tri- 
bunal and  to  the  party  demanding  the  revision. 

Proceedings  for  revision  can  only  be  instituted  by  a  decision  of  the 
Tribunal  expressly  recording  the  existence  of  the  new  fact,  recognizing 
in  it  the  character  described  in  the  foregoing  paragraph,  and  declaring 
the  demand  admissible  on  this  ground. 

The  "Compromis"  fixes  the  period  within  which  the  demand  for 
revision  must  be  made. 

Art.  84.     The  award  is  not  binding  except  on  the  parties  in  dispute. 

When  there  is  a  question  of  interpreting  a  Convention  to  which 
Powers  other  than  those  concerned  in  the  dispute  are  parties,  they 
shall  inform  all  the  Signatory  Powers  in  good  time.  Each  of  these 
Powers  has  the  right  to  intervene  in  the  case.  If  one  or  more  of  them 
avail  themselves  of  this  right,  the  interpretation  contained  in  the 
award  is  equally  binding  on  them. 

Art.  85.  Each  party  pays  its  own  expenses  and  an  equal  share  of 
those  of  the  Tribunal. 


Chapter  IV.     Arbitration  by  Summary  Procedure 

Art.  86.  With  a  view  to  facilitating  the  working  of  the  system  of 
arbitration  in  disputes  admitting  of  a  summary  procedure,  the  Con- 
tracting Powers  adopt  the  following  rules,  which  shall  be  observed 
in  the  absence  of  other  arrangements  and  subject  to  the  rescFvation 
that  the  provisions  of  Chapter  III  apply  so  far  as  they  are  not  incon- 
sistent. 

Art.  87.  Each  of  the  parties  in  dispute  appoints  an  Arbitrator. 
The  two  Arbitrators  thus  selected  choose  an  Umpire.  If  they  do  not 
agree  on  this  point,  each  of  them  proposes  two  candidates  taken  from 
the  general  list  of  the  members  of  the  Permanent  Court  exclusive  of 
the  members  appointed  by  either  of  the  parties  and  not  being  nationals 
of  either  of  them ;  which  of  the  candidates  thus  proposed  shall  be  the 
Umjnre  is  determined  by  lot. 

The  Umpire  presides  over  the  Tribunal,  which  gives  its  decisions  by 
a  majority  of  votes. 

Art.  88.     In  the  absence  of  any  previous  agreement  the  Tribunal, 


APPENDIX  IV  405 

as  soon  as  it  is  formed,  settles  the  time  within  which  the  two  parties 
must  submit  their  respective  cases  to  it. 

Art,  89.  Each  party  is  represented  before  the  Tribunal  by  an 
agent,  who  serves  as  intermediary  between  the  Tribunal  and  the  Gov- 
ernment which  has  appointed  him. 

Art.  90.  The  proceedings  are  conducted  exclusively  in  writing. 
Each  party,  however,  is  entitled  to  ask  that  witnesses  and  experts 
should  be  called.  The  Tribunal  has,  for  its  part,  the  right  to  demand 
oral  explanations  from  the  agents  of  the  two  parties,  as  well  as  from 
the  experts  and  witnesses  whose  appearance  in  Court  it  may  consider 
useful. 

General  Provisions 

Art.  91.  The  present  Convention,  duly  ratified,  shall  replace,  as 
between  the  Contracting  Powers,  the  Convention  for  the  Pacific  Set- 
tlement of  International  Disputes  of  the  29th  July,  1899. 

Art.  92.  The  present  Convention  shall  be  ratified  as  speedily  as 
possible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

The  first  deposit  of  ratifications  shall  be  recorded  in  a  procbs-verbal 
signed  by  the  Representatives  of  the  Powers  which  take  part  therein 
and  by  the  Netherland  Minister  for  Foreign  Affairs. 

The  subsequent  deposits  of  ratifications  shall  be  made  by  means 
of  a  written  notification,  addressed  to  the  Netherland  Government 
and  accompanied  by  the  instrument  of  ratification. 

A  duly  certified  copy  of  the  proces-verbal  relative  to  the  first  deposit 
of  ratifications,  of  the  notifications  mentioned  in  the  preceding  para- 
graph, and  of  the  instruments  of  ratification,  shall  be  immediately 
sent  by  the  Netherland  Government,  through  the  diplomatic  channel, 
to  the  Powers  invited  to  the  Second  Peace  Conference,  as  well  as  to 
those  Powers  which  have  adhered  to  the  Convention.  In  the  cases 
contemplated  in  the  preceding  paragraph,  the  said  Government  shall 
at  the  same  time  inform  the  Powers  of  the  date  on  which  it  received 
the  notification. 

Art.  93.  The  non-Signatory  Powers  which  have  been  invited  to 
the  Second  Peace  Conference  may  adhere  to  the  present  Convention. 

The  Power  which  desires  to  adhere  notifies  its  intention  in  writing 
to  the  Netherland  Government,  forwarding  to  it  the  act  of  adhesion, 
which  shall  be  deposited  in  the  archives  of  the  said  Government. 

This  Government  shall  immediately  forward  to  all  the  other  Powers 


406  APPENDIX  IV 

invited  to  the  Second  Peace  Conference  a  duly  certified  copy  of  the 
notification  as  well  as  of  the  act  of  adhesion,  mentioning  the  date  on 
which  it  received  the  notification. 

Art.  94.  The  conditions  on  which  the  Powers  which  have  not 
been  invited  to  the  Second  Peace  Conference  may  adhere  to  the  pres- 
ent Convention  shall  form  the  subject  of  a  subsequent  Agreement  be- 
tween the  Contracting  Powers. 

Art.  95.  The  present  Convention  shall  take  effect,  in  the  case  of 
the  Powers  which  were  parties  to  the  first  deposit  of  ratifications, 
sixty  days  after  the  date  of  the  proces-verbal  of  this  deposit,  and,  in  the 
case  of  the  Powers  which  ratify  subsequently  or  which  adhere,  sixty 
days  after  the  notification  of  their  ratification  or  of  their  adhesion 
has  been  received  by  the  Netherland  Government. 

Art.  96.  In  the  event  of  one  of  the  Contracting  Parties  wishing 
to  denounce  the  present  Convention,  the  denunciation  shall  be  notified 
in  writing  to  the  Netherland  Government,  which  shall  inamediately 
communicate  a  duly  certified  copy  of  the  notification  to  all  the  other 
Powers  informing  them  of  the  date  on  which  it  was  received. 

The  denunciation  shall  only  have  effect  in  regard  to  the  notifying 
Power,  and  one  year  after  the  notification  has  reached  the  Netherland 
Government. 

Art.  97.  A  register  kept  by  the  Netherland  Minister  for  Foreign 
Affairs  shall  give  the  date  of  the  deposit  of  ratifications  effected  in 
virtue  of  Article  92,  paragraphs  3  and  4,  as  well  as  the  date  on  which 
the  notifications  of  adhesion  (Article  93,  paragraph  2)  or  of  denimcia- 
tion  (Article  96,  paragraph  1)  have  been  received. 

Each  Contracting  Power  is  entitled  to  have  access  to  this  register 
and  to  be  supplied  with  duly  certified  extracts  from  it. 

In  faith  whereof  the  Plenipotentiaries  have  appended  their  signa- 
tures to  the  present  Convention. 

Done  at  The  Hague,  the  18th  October,  1907,  in  a  single  copy,  which 
shall  remain  deposited  in  the  archives  of  the  Netherland  Government, 
and  duly  certified  copies  of  which  shall  be  sent,  through  the  diplomatic 
channel,  to  the  Contracting  Powers. 

The  said  Convention  was  ratified  by  the  Senate  of  the  United  States 
of  America  under  reservation  of  the  following  declaration: 

"Nothing  contained  in  this  convention  shall  be  so  construed  as  to 
require  the  United  States  of  America  to  depart  from  its  traditional 
policy  of  not  intruding  upon,  interfering  with,  or  entangUng  itself  in 


APPENDIX  IV  407 

the  political  questions  of  policy  or  internal  administration  of  any- 
foreign  state;  nor  shall  anything  contained  in  the  said  convention  be 
construed  to  imply  a  relinquishment  by  the  United  States  of  America 
of  its  traditional  attitude  toward  purely  American  questions." 

Resolved  further,  as  a  part  of  this  act  of  ratification,  That  the  United 
States  approves  this  convention  with  the  understanding  that  recourse 
to  the  permanent  court  for  the  settlement  of  differences  can  be  had 
only  by  agreement  thereto  through  general  or  special  treaties  of  arbi- 
tration heretofore  or  hereafter  concluded  between  the  parties  in  dis- 
pute ;  and  the  United  States  now  exercises  the  option  contained  in 
Article  53  of  said  convention,  to  exclude  the  formulation  of  the  "Com- 
promis"by  the  permanent  court,  and  hereby  excludes  from  the  com- 
petence of  the  permanent  court  the  power  to  frame  the  "Compromis" 
required  by  general  or  special  treaties  of  arbitration  concluded  or 
hereafter  to  be  concluded  by  the  United  States,  and  further  expressly 
declares  that  the  "  Compromis  "  required  by  any  treaty  of  arbitration 
to  which  the  United  States  may  be  a  party  shall  be  settled  only  by 
agreement  between  the  contracting  parties,  unless  such  treaty  shall 
expressly  provide  otherwise. 


APPENDIX   V 

CONVENTION  WITH  RESPECT  TO  THE  LAWS  AND 
CUSTOMS  OF  WAR  ON  LAND 

[Names  of  States.'] 

Considering  that,  while  seeking  means  to  preserve  peace  and  pre- 
vent armed  conflicts  between  nations,  it  is  likewise  necessary  to  bear 
in  mind  the  case  where  the  appeal  to  arms  has  been  brought  about  by 
events  which  their  care  was  unable  to  avert ; 

Animated  by  the  desire  to  serve,  even  in  this  extreme  case,  the  in- 
terests of  humanity  and  the  ever  progressive  needs  of  civilization; 

Thinking  it  important,  with  this  object,  to  revise  the  general  laws 
and  customs  of  war,  either  with  a  view  to  defining  them  more  precisely, 
or  to  confining  them  within  such  limits  as  would  mitigate  their  sever- 
ity as  far  as  possible; 

Have  deemed  it  necessary  to  complete  and  explain  in  certain  par- 
ticulars the  work  of  the  First  Peace  Conference,  which,  following  on 
the  Brussels  Conference  of  1S74,  and  inspired  by  the  ideas  dictated 
by  a  wise  and  generous  forethought,  adopted  provisions  intended  to 
define  and  govern  the  usages  of  war  on  land. 

According  to  the  views  of  the  High  Contracting  Parties,  these  provi- 
sions, the  wording  of  which  has  been  inspired  by  the  desire  to  diminish 
the  evils  of  war  as  far  as  military  necessities  permit,  are  intended  to 
serve  as  a  general  rule  of  conduct  for  the  belligerents  in  their  relations 
with  each  other  and  with  the  inhabitants. 

It  has  not,  however,  been  found  possible  at  present  to  concert  reg- 
ulations covering  all  the  circvunstances  which  occur  in  practice. 

On  the  other  hand,  it  could  not  be  intended  by  the  High  Contracting 
Parties  that  the  unforeseen  cases  should,  in  the  absence  of  a  written 
undertaking,  be  loft  to  the  arbitrary  judgment  of  military  Command- 
ers. 

Until  a  more  complete  code  of  the  laws  of  war  has  been  issued,  the 

*  For  names  of  States  see  Appendix  IV,  p.  389. 
408 


APPENDIX  V  409 

High  Contracting  Parties  deem  it  expedient  to  declare  that  in  cases 
not  included  in  the  Regulations  adopted  by  them,  the  inhabitants  and 
the  belligerents  remain  under  the  protection  and  the  rule  of  the  prin- 
ciples of  international  law,  as  they  result  from  the  usages  established 
among  civilized  peoples,  from  the  laws  of  humanity,  and  the  dictates 
of  the  pubhc  conscience. 

They  declare  that  it  is  in  this  sense  especially  that  Articles  1  and  2 
of  the  Regulations  adopted  must  be  understood. 

The  High  Contracting  Parties,  desiring  to  conclude  a  fresh  Con- 
vention to  this  effect,  have  appointed  as  their  Plenipotentiaries,  to 
wit: — 

[Names  of  Plenipotentiaries.] 

Who,  after  having  deposited  their  full  powers,  found  in  good  and 
due  form,  have  agreed  upon  the  following: — 

Article  1.  The  High  Contracting  Parties  shall  issue  instructions 
to  their  armed  land  forces,  which  shall  be  in  conformity  with  the 
Regulations  respecting  the  Laws  and  Customs  of  War  on  Land,  an- 
nexed to  the  present  Convention. 

Art.  2.  The  provisions  contained  in  the  Regulations  referred  to  in 
Article  1,  as  well  as  in  the  present  Convention,  do  not  apply  except 
between  Contracting  Powers,  and  then  only  if  all  the  beUigerents  are 
parties  to  the  Convention. 

Art.  3.  A  belligerent  party  which  violates  the  provisions  of  the 
said  Regulations  shall,  if  the  case  demands,  be  liable  to  pay  compen- 
sation. It  shall  be  responsible  for  all  acts  committed  by  persons 
forming  part  of  its  armed  forces. 

Art.  4.  The  present  Convention,  duly  ratified,  shall  as  between 
the  Contracting  Powers,  be  substituted  for  the  Convention  of  the 
29th  July,  1899,  respecting  the  Laws  and  Customs  of  War  on  Land. 

The  Convention  of  1899  remains  in  force  as  between  the  Powers 
which  signed  it,  and  which  do  not  also  ratify  the  present  Convention. 

Art.  5.  The  present  Convention  shall  be  ratified  as  soon  as  pos- 
sible. 

The  ratifications  shall  be  deposited  at  The  Hague. 

The  first  deposit  of  ratifications  shall  be  recorded  in  a  proces-verbal 
signed  by  the  Representatives  of  the  Powers  which  take  part  therein 
and  by  the  Netherland  Minister  for  Foreign  Affairs. 

The  subsequent  deposits  of  ratifications  shall  be  made  by  means 
of  a  written  notification,  addressed  to  the  Netherland  Government 
and  accompanied  by  the  instrument  of  ratification. 


410  APPENDIX  V 

A  duly  certified  copy  of  the  proces-verbal  relative  to  the  first  de- 
posit of  ratifications,  of  the  notifications  mentioned  in  the  preceding 
paragraph,  as  well  as  of  the  instruments  of  ratification,  shall  be  im- 
mediately sent  by  the  Netherland  Government,  through  the  diplo- 
matic channel,  to  the  Powers  invited  to  the  Second  Peace  Conference, 
as  well  as  to  the  other  Powers  which  have  adhered  to  the  Convention. 
In  the  cases  contemplated  in  the  preceding  paragraph  the  said  Gov- 
ernment shall  at  the  same  time  inform  them  of  the  date  on  which  it 
received  the  notification. 

Art.  6.  Non-Signatory  Powers  may  adhere  to  the  present  Con- 
vention. 

The  Power  which  desires  to  adhere  notifies  in  writing  its  intention 
to  the  Netherland  Government,  forwarding  to  it  the  act  of  adhesion, 
which  shall  be  deposited  in  the  archives  of  the  said  Government. 

This  Government  shall  at  once  transmit  to  all  the  other  Powers 
a  duly  certified  copy  of  the  notification  as  well  as  of  the  act  of  ad- 
hesion, mentioning  the  date  on  which  it  received  the  notification. 

Art.  7.  The  present  Convention  shall  come  into  force,  in  the  case 
of  the  Powers  which  were  a  party  to  the  first  deposit  of  ratifications 
sixty  days  after  the  date  of  the  proces-verbal  of  this  deposit,  and,  in 
the  case  of  the  Powers  which  ratify  subsequently  or  which  adhere, 
sixty  days  after  the  notification  of  their  ratification  or  of  their  ad- 
hesion has  been  received  by  the  Netherland  Government. 

Art.  8.  In  the  event  of  one  of  the  Contracting  Powers  wishing  to 
denounce  the  present  Convention,  the  denunciation  shall  be  notified 
in  writing  to  the  Netherland  Government,  which  shall  at  once  com- 
municate a  duly  certified  copy  of  the  notification  to  all  the  other  Pow- 
ers, informing  them  of  the  date  on  which  it  was  received. 

The  denunciation  shall  only  have  eff'ect  in  regard  to  the  notifying 
Power,  and  one  year  after  the  notification  has  reached  the  Netherland 
Government. 

Art.  9.  A  register  kept  by  the  Netherland  Ministry  for  Foreign 
Affairs  shall  give  the  date  of  the  deposit  of  ratifications  made  in  virtue 
of  Article  5,  jjaragraphs  3  and  4,  as  well  as  the  date  on  which  the 
notifications  of  adhesion  (Article  6,  paragraph  2)  or  of  denunciation 
(Article  8,  paragrai)h  1)  were  received. 

Each  Contracting  Power  is  entitled  to  have  access  to  this  register 
and  to  be  supplied  with  duly  certified  extracts. 

In  faith  whereof  the  Plenipotentiaries  have  appended  their  signa- 
tures to  the  present  Convention. 


APPENDIX  V  411 

Done  at  The  Hague,  the  18th  October,  1907,  in  a  single  copy,  which 
shall  remain  deposited  in  the  archives  of  the  Netherland  Government, 
and  duly  certified  copies  of  which  shall  be  sent,  through  the  diplomatic 
channel,  to  the  Powers  which  have  been  invited  to  the  Second  Peace 
Conference. 

ANNEX   TO   THE  CONVENTION 

REGULATIONS    RESPECTING    THE    LAWS    AND    CUSTOMS 

OF  WAR  ON  LAND 


SECTION  I 

Belligerents 

Chapter  I.     On  the  Qualifications  of  Belligerents 

Article  1.  The  laws,  rights,  and  duties  of  war  apply  not  only  to 
armies,  but  also  to  militia  and  volunteer  coqjs,  fulfilling  the  following 
conditions : 

1.  To  be  commanded  by  a  person  responsible  for  his  subordinates; 

2.  To  have  a  fixed  distinctive  emblem  recognizable  at  a  distance; 

3.  To  carry  arms  openly;  and 

4.  To  conduct  their  operations  in  accordance  with  the  laws  and  cus- 
toms of  war. 

In  countries  where  militia  or  volunteer  corps  constitute  the  army,  or 
form  part  of  it,  they  are  included  under  the  denomination  "army." 

Art.  2.  The  population  of  a  territory  which  has  not  been  occupied 
who,  on  the  enemy's  approach,  spontaneously  take  up  arms  to  resist 
the  invading  troops  without  having  had  time  to  organize  themselves 
in  accordance  with  Article  1,  shall  be  regarded  as  belligerent  if  they 
carry  arms  openly  and  if  they  respect  the  laws  and  customs  of  war. 

Art.  3.  The  armed  forces  of  the  belligerent  parties  may  consist 
of  combatants  and  noncombatants.  In  case  of  capture  by  the  enemy 
both  have  a  right  to  be  treated  as  prisoners  of  war. 

Chapter  II.     Prisoners  of  War 

Art.  4.  Prisoners  of  war  are  in  the  power  of  the  hostile  Govern- 
ment, but  not  in  that  of  the  individuals  or  corps  who  captured  them. 

They  must  be  humanely  treated. 

All  their  personal  belongings,  except  arms,  horses,  and  military 
papers,  remain  their  property. 


412  APPENDIX  V 

Art.  5.  Prisoners  of  war  may  be  interned  in  a  town,  fortress, 
camp,  or  any  other  locality,  and  bound  not  to  go  beyond  certain  fixed 
limits;  but  they  cannot  be  confined  except  as  an  indispensable  meas- 
ure of'safety,  and  only  while  the  circumstances  which  necessitate  the 
measure  continue  to  exist. 

Art.  6.  The  State  may  utilize  the  labor  of  prisoners  of  war  ac- 
cording to  their  rank  and  aptitude,  officers  excepted.  Their  tasks  shall 
not  be  excessive,  and  shall  have  nothing  to  do  with  the  military 

operations. 

Prisoners  may  be  authorized  to  work  for  the  pubUc  service,  for 
private  persons,  or  on  their  own  account. 

Work  done  for  the  State  shall  be  paid  for  according  to  the  rates  in 
force  for  soldiers  of  the  national  army  employed  on  similar  tasks,  or, 
if  there  are  none  in  force,  at  a  rate  according  to  the  work  executed. 

When  the  work  is  for  other  branches  of  the  pubhc  service  or  for 
private  persons,  the  conditions  shall  be  settled  in  agreement  with  the 
military  authorities. 

The  wages  of  the  prisoners  shall  go  towards  improving  their  position, 
and  the  balance  shall  be  paid  them  at  the  time  of  their  release,  after 
deducting  the  cost  of  their  maintenance. 

Art.  7.  The  Government  into  whose  hands  prisoners  of  war  have 
fallen  is  bound  to  maintain  them. 

Failing  a  special  agreement  between  the  belligerents,  prisoners  of  war 
shall  be  treated  as  regards  food,  quarters,  and  clothing,  on  the  same 
footing  as  the  troops  of  the  Government  which  has  captured  them. 

Art.  8.  Prisoners  of  war  shall  be  subject  to  the  laws,  regulations, 
and  ord(!rs  in  force  in  the  army  of  the  State  into  whose  hands  they 
have  fallen. 

Any  act  of  insubordination  warrants  the  adoption,  as  regards  them, 
of  such  measures  of  severity  as  may  be  necessary. 

Escaped  prisoners,  recaptured  before  they  have  succeeded  in  re- 
joining their  army  or  before  quitting  the  territory  occupied  by  the 
army  that  captured  them,  are  liable  to  disciplinary  punishment. 

Prisoners,  who  after  succeeding  in  escaping  are  again  taken  prison- 
ers, are  not  liable  to  any  punishment  for  the  previous  flight. 

Art.  9.     Every  prisoner  of  war,  if  questioned,  is  bound  to  declare 

his  true  name  and  rank,  and  if  he  disregards  this  rule,  he  is  liable  to  a 

curtailment  of  the  advantages  accorded  to  the  prisoners  of  war  of  his 

class. 

Art.  10.    Prisoners  of  war  may  be  set  at  liberty  on  parole  if  the 


APPENDIX  V  413 

laws  of  their  country  authorize  it,  and,  in  such  a  ease,  they  are  bound, 
on  their  personal  honor,  scrupulously  to  fulfill,  both  as  regards  their 
own  Government  and  the  Government  by  which  they  were  made 
prisoners,  the  engagements  they  have  contracted. 

In  such  cases,  their  own  Government  shall  not  require  of  nor  accept 
from  them  any  service  incomi^atible  with  the  parole  given. 

Art.  U.  a  prisoner  of  war  cannot  be  forced  to  accept  his  liberty 
on  parole;  similarly  the  hostile  Government  is  not  obhged  to  assent 
to  the  prisoner's  request  to  be  set  at  liberty  on  parole. 

Art.  12.  Any  prisoner  of  war,  who  is  liberated  on  parole  and  re- 
captured, bearing  arms  against  the  Government  to  whom  he  had 
pledged  his  honor,  or  against  the  allies  of  that  Government,  forfeits 
his  right  to  be  treated  as  a  prisoner  of  war,  and  can  be  brought  before 
the  Courts. 

Art.  13.  Individuals  who  follow  an  army  without  directly  be- 
longing to  it,  such  as  newspaper  correspondents  and  reporters,  sutlers, 
contractors,  who  fall  into  the  enemy's  hands,  and  whom  the  latter  think 
fit  to  detain,  have  a  right  to  be  treated  as  prisoners  of  war,  provided 
they  can  produce  a  certificate  from  the  military  authorities  of  the 
army  they  were  accompanying. 

Art.  14.  A  bureau  for  information  relative  to  prisoners  of  war 
is  instituted,  on  the  commencement  of  hostilities,  in  each  of  the  bel- 
ligerent States,  and  when  necessary,  in  the  neutral  countries  on  whose 
territory  belligerents  have  been  received.  This  bureau  is  intended 
to  answer  all  inquiries  about  prisoners  of  war,  and  is  furnished  by  the 
various  services  concerned  with  all  the  information  respecting  intern- 
ments and  transfers,  releases  on  parole,  exchanges,  escapes,  admissions 
into  hospital,  deaths,  as  well  as  other  information  necessary  to  enable 
it  to  make  out  and  keep  up  to  date  an  individual  return  for  each 
prisoner  of  war.  The  bureau  must  state  in  this  return  the  regimental 
number,  name  and  surname,  age,  place  of  origin,  rank,  unit,  wounds, 
date  and  place  of  captm-e,  of  internment,  the  woimds,  and  the  death, 
as  well  as  any  observations  of  a  special  character.  The  individual  re- 
turn shall  be  sent  to  the  Government  of  the  other  belligerent  after  the 
conclusion  of  peace. 

It  is  also  the  duty  of  the  information  bureau  to  receive  and  collect 
all  objects  of  personal  use,  valuables,  letters,  etc.,  found  on  the  battle- 
fields or  left  by  prisoners  who  have  been  released  on  parole,  or  ex- 
changed, or  who  have  escaped  or  died  in  hospitals  or  ambulances, 
and  to  transmit  them  to  those  interested. 


414  APPENDIX  V 

Art.  15.  Relief  Societies  for  prisoners  of  war,  which  are  properly 
constituted  in  accordance  with  the  law  of  the  country  with  the  object 
of  serving  as  the  intermediary  for  charity,  shall  receive  from  the  bel- 
ligerents for  themselves  and  their  duly  accredited  agents  every  facil- 
ity, within  the  bounds  of  military  requirements  and  administrative 
regulations  for  the  effective  accomplishment  of  their  humane  task. 
Delegates  of  these  Societies  may  be  admitted  to  the  places  of  intern- 
ment for  the  distribution  of  relief,  as  also  to  the  halting  places  of  re- 
patriated prisoners,  if  furnished  with  a  personal  permit  by  the  military 
authorities,  and  on  giving  an  engagement  in  writing  to  comply  with 
all  regulations  for  order  and  police  which  they  may  prescribe. 

Art.  16.  The  information  bureau  shall  have  the  privilege  of  free 
postage.  Letters,  money  orders,  and  valuables,  as  well  as  postal 
parcels  destined  for  the  prisoners  of  war  or  dispatched  by  them,  shall 
be  free  of  all  postal  duties  both  in  the  countries  of  origin  and  destina- 
tion, as  well  as  in  those  they  pass  through. 

Gifts  and  relief  in  kind  for  prisoners  of  war  shall  be  admitted  free 
of  all  duties  of  entry  and  others,  as  well  as  of  payments  for  carriage  by 
the  State  railways. 

Art.  17.  Officers  taken  prisoners  shall  receive  the  same  rate  of 
pay  as  officers  of  corresponding  rank  in  the  country  where  they  are 
detained,  the  amount  to  be  ultimately  refunded  by  their  own  Govern- 
ment. 

Art.  18.  Prisoners  of  war  shall  enjoy  complete  liberty  in  the  exer- 
cise of  their  religion,  including  attendance  at  their  own  church  services, 
provided  only  they  comply  with  the  regulations  for  order  and  police 
issued  by  the  military  authorities. 

Art.  19.  The  wills  of  prisoners  of  war  are  received  or  drawn  Aip  on 
the  same  conditions  as  for  soldiers  of  the  national  army. 

The  same  rules  shall  be  observed  regarding  death  certificates,  as 
well  as  for  the  burial  of  prisoners  of  war,  due  regard  being  paid  to  their 
grade  and  rank. 

Art.  20,  After  the  conclusion  of  peace,  the  repatriation  of  pris- 
oners of  war  shall  take  place  as  speedily  as  possible. 

Chapter  III.     The  Sick  and  Wounded 

Art.  21.  The  obligations  of  belligerents  with  regard  to  the  sick 
and  wounded  are  governed  by  the  Geneva  Convention. 


APPENDIX  V  415 

SECTION  II 
Hostilities 

Chapter  I.     On  Means  of  injuring  the  Enemy,  Sieges  and  Bombard- 
ments 

Art.  22.  The  right  of  belligerents  to  adopt  means  of  injuring  the 
enemy  is  not  unlimited. 

Art.  23.  Besides  the  prohibitions  provided  by  special  Conven- 
tions, it  is  especially  prohibited : — 

(a)  To  employ  poison  or  poisoned  arms ; 

(b)  To  kill  or  wound  treacherously  individuals  belonging  to  the 
hostile  nation  or  army ; 

(c)  To  kill  or  wound  an  enemy  who,  having  laid  down  arms,  or 
having  no  longer  means  of  defense,  has  surrendered  at  discretion; 

(d)  To  declare  that  no  quarter  will  be  given ; 

(e)  To  employ  arms,  projectiles,  or  material  of  a  nature  to  cause 
superfluous  injury; 

(/)  To  make  improper  use  of  a  flag  of  truce,  the  national  flag,  or 
military  ensigns  and  the  enemy's  uniform,  as  well  as  the  distinctive 
badges  of  the  Geneva  Convention ; 

(g)  To  destroy  or  seize  the  enemy's  property,  imless  such  destruc- 
tion or  seizure  be  imperatively  demanded  by  the  necessities  of  war; 

(h)  To  declare  abolished,  suspended,  or  inadmissible  in  a  court  of 
law  the  rights  and  actions  of  the  nationals  of  the  hostile  party. 

A  belligerent  is  hkewise  forbidden  to  compel  the  nationals  of  the 
hostile  party  to  take  part  in  the  operations  of  war  directed  against 
their  own  country,  even  if  they  were  in  the  belligerent's  service  before 
the  commencement  of  war. 

Art.  24.  Ruses  of  war  and  the  employment  of  methods  necessary 
to  obtain  information  about  the  enemy  and  the  coimtry,  are  consid- 
ered allowable. 

Art.  25.  The  attack  or  bombardment,  by  whatever  means,  of 
towns,  villages,  habitations  or  buildings  which  are  not  defended,  is 
prohibited. 

Art.  26.  The  Commander  of  an  attacking  force,  before  com- 
mencing a  bombardment,  except  in  the  case  of  an  assault,  should  do 
all  he  can  to  warn  the  authorities. 

Art.  27.     In  sieges  and  bombardments  all  necessary  steps  should 


416  APPENDIX  V 

be  taken  to  spare  as  far  as  possible  edifices  devoted  to  religion,  art, 
science,  and  charity,  historic  monuments,  hospitals,  and  places  where 
the  sick  and  wounded  are  collected,  provided  they  are  not  used  at  the 
same  time  for  military  purposes. 

The  besieged  should  indicate  these  buildings  or  places  by  some  par- 
ticular and  visible  signs,  which  should  previously  be  notified  to  the 
assailants. 

Art.  28.  The  pillage  of  a  town  or  place,  even  when  taken  by  as- 
sault, is  prohibited. 

Chapter  II.    Spies 

Art.  29.  An  individual  can  only  be  considered  a  spy  if,  acting 
clandestinely,  or  on  false  pretenses,  he  obtains,  or  seeks  to  obtain  in- 
formation in  the  zone  of  operations  of  a  belligerent,  with  the  intention 
of  communicating  it  to  the  hostile  party. 

Thus,  soldiers  not  in  disguise  who  have  penetrated  into  the  zone 
of  operations  of  a  hostile  army  to  obtain  information  are  not  consid- 
ered spies.  Similarly,  the  following  are  not  considered  spies:  soldiers 
or  civilians,  carrying  out  their  mission  openly,  charged  with  the  de- 
livery of  dispatches  destined  either  for  their  own  army  or  for  that  of 
the  enemy.  To  this  class  belong  likewise  individuals  sent  in  balloons 
to  deliver  dispatches,  and  generally  to  maintain  communication  be- 
tween the  various  parts  of  an  army  or  a  territory. 

Art.  30.  A  spy  taken  in  the  act  cannot  be  punished  without 
previous  trial. 

Art.  31.  A  spy  who,  after  rejoining  the  army  to  which  he  belongs, 
is  subsequently  captured  by  the  enemy,  is  treated  as  a  prisoner  of 
war  and  incurs  no  responsibility  for  his  previous  acts  of  espionage. 

Chapter  III,     Flags  of  Truce 

Art.  32.  An  individual  is  considered  as  bearing  a  flag  of  truce 
who  is  authorized  by  one  of  the  belligerents  to  enter  into  communica- 
tion with  the  other,  and  who  carries  a  white  flag.  He  has  a  right  to 
inviolability,  as  well  as  the  trumpeter,  bugler,  or  drummer,  the  flag- 
bcarcr  and  the  interpreter  who  may  accompany  him. 

Art.  33.  The  Chief  to  whom  a  flag  of  truce  is  sent  is  not  obliged 
to  receive  it  in  all  circumstances. 

He  can  take  all  steps  necessary  to  prevent  the  envoy  taking  advan- 
tage of  his  mission  to  obtain  information. 


APPENDIX  V  417 

In  case  of  abuse,  he  has  the  right  to  detain  the  envoy  temporarily. 

Art.  34.  The  bearer  of  a  flag  of  truce  loses  his  rights  of  inviolability 
if  it  is  proved  beyond  doubt  that  he  has  taken  advantage  of  his  privi- 
leged position  to  provoke  or  commit  an  act  of  treachery. 

Chapter  IV.     Capihdations 

Art.  35.  Capitulations  agreed  on  between  the  Contracting  Par- 
ties must  be  in  accordance  with  the  rules  of  military  honor. 

When  once  settled,  they  must  be  scrupulously  observed  by  both 
the  parties. 

Chapter  V.     Armistices 

Art.  36.  An  armistice  suspends  military  operations  by  mutual 
agreement  between  the  belligerent  parties.  If  its  duration  is  not  fixed, 
the  belligerent  parties  can  resume  operations  at  any  time,  provided 
always  the  enemy  is  warned  within  the  time  agreed  upon,  in  accord- 
ance with  the  terms  of  the  armistice. 

Art.  37.  An  armistice  may  be  general  or  local.  The  first  sus- 
pends all  military  operations  of  the  belligerent  States;  the  second, 
only  those  between  certain  fractions  of  the  belligerent  armies  and  in 
a  fixed  radius. 

Art.  38.  An  armistice  must  be  notified  officially,  and  in  good 
time,  to  the  competent  authorities  and  the  troops.  Hostilities  are 
suspended  immediately  after  the  notification,  or  at  a  fixed  date. 

Art.  39.  It  is  for  the  Contracting  Parties  to  settle,  in  the  terms 
of  the  armistice,  what  communications  may  be  held,  on  the  theater 
of  war,  with  the  population  and  with  each  other. 

Art.  40.  Any  serious  violation  of  the  armistice  by  one  of  the  par- 
ties gives  the  other  party  the  right  to  denounce  it,  and  even,  in  case 
of  urgency,  to  recommence  hostilities  at  once. 

Art.  41.  A  \aolation  of  the  terms  of  the  armistice  by  individuals 
acting  on  their  own  initiative,  only  confers  the  right  of  demanding 
the  punishment  of  the  offenders,  and,  if  necessary,  indemnity  for  the 
losses  sustained. 

SECTION  III 
Military  Authority  over  Hostile  Territory 

Art.  42.  Territory  is  considered  occupied  when  it  is  actually 
placed  under  the  authority  of  the  hostile  army. 


418  APPENDIX  V 

The  occupation  applies  only  to  the  territory  where  such  authority 
is  established,  and  in  a  position  to  assert  itself. 

Art.  43.  The  authority  of  the  legitimate  power  having  actually 
passed  into  the  hands  of  the  occupant,  the  latter  shall  take  all  steps 
in  his  power  to  reestablish  and  insure,  as  far  as  possible,  public  order 
and  safety,  while  respecting,  unless  absolutely  prevented,  the  laws  in 
force  in  the  country. 

Art.  44.  Any  compulsion  of  the  population  of  occupied  territory 
to  furnish  information  about  the  army  of  the  other  belligerent  or 
about  its  means  of  defense  is  prohibited. 

Art.  45.  Any  pressure  on  the  population  of  occupied  territory  to 
take  the  oath  to  the  hostile  Power  is  prohibited. 

Art.  46.  Family  honor  and  rights,  individual  lives  and  private 
property,  as  well  as  religious  convictions  and  practice,  must  be  re- 
spected. 

Private  property  cannot  be  confiscated. 

Art.  47.     Pillage  is  formally  prohibited. 

Art.  48.  If,  in  the  territory  occupied,  the  occupant  collects  the 
taxes,  dues,  and  tolls  imposed  for  the  benefit  of  the  State,  he  shall 
do  it,  as  far  as  possible,  in  accordance  with  the  rules  in  existence 
and  the  assessment  in  force,  and  will  in  consequence  be  bound  to 
defray  the  expenses  of  the  administration  of  the  occupied  territory 
on  the  same  scale  as  that  by  which  the  legitimate  Government  was 
bound. 

Art.  49.  If,  besides  the  taxes  mentioned  in  the  preceding  Article, 
the  occupant  levies  other  money  taxes  in  the  occupied  territory,  this 
can  only  be  for  military  necessities  or  the  administration  of  such  terri- 
tory. 

Art.  50.  No  general  penalty,  pecuniary  or  otherwise,  can  be  in- 
flicted on  the  population  on  account  of  the  acts  of  individuals  for 
which  it  cannot  be  regarded  as  collectively  responsible. 

Art.  51.  No  contribution  shall  be  collected  except  under  a  written 
order  and  on  the  responsibility  of  a  Commander-in-chief. 

This  collection  shall  only  take  place,  as  far  as  possible,  in  accordance 
with  the  rules  in  existence  and  the  assessment  of  taxes  in  force. 

For  every  payment  a  receipt  shall  be  given  to  the  payer. 

Art.  52.  Neither  requisition  in  kind  nor  services  can  be  demanded 
from  communes  or  inhabitants  except  for  the  necessities  of  the  army 
of  occupation.  They  must  be  in  proportion  to  the  resources  of  the 
country,  and  of  such  a  nature  as  not  to  involve  the  population  in  the 


APPENDIX  V  419 

obligation  of  taking  part  in  military  operations  against  their  own 
country. 

These  requisitions  and  services  shall  only  be  demanded  on  the 
authority  of  the  Commander  in  the  locality  occupied. 

The  requisitions  in  kind  shall,  as  far  as  possible,  be  paid  for  in  ready 
money ;  if  not,  a  receipt  shall  be  given  and  the  payment  of  the  amount 
due  shall  be  made  as  soon  as  possible. 

Art.  53.  An  army  of  occupation  can  only  take  j^ossession  of  the 
cash,  fimds,  and  realizable  securities  belonging  strictly  to  the  State, 
depots  of  arms,  means  of  transport,  stores  and  suppUes,  and,  generally, 
all  movable  property  of  the  State  which  may  be  used  for  military 
operations. 

All  appliances,  whether  on  land,  at  sea,  or  in  the  air,  adapted  for  the 
transmission  of  news,  or  for  the  transport  of  persons  or  things,  apart 
from  cases  governed  by  maritime  law,  depots  of  arms  and,  generally, 
all  kinds  of  war  material  may  be  seized,  even  though  belonging  to 
private  persons,  but  they  must  be  restored  at  the  conclusion  of  peace, 
and  indemnities  paid  for  them. 

Art.  54.  Submarine  cables  connecting  an  occupied  territory  with 
a  neutral  territory  shall  not  be  seized  or  destroyed  except  in  the  case 
of  absolute  necessity.  They  must  likewise  be  restored  and  compensa- 
tion fixed  when  peace  is  made. 

Art.  55.  The  occupying  State  shall  be  regarded  only  as  adminis- 
trator and  usufructuary  of  the  public  buildings,  real  estate,  forests, 
and  agricultural  works  belonging  to  the  hostile  State,  and  situated  in 
the  occupied  country.  It  must  protect  the  capital  of  these  properties, 
and  administer  it  according  to  the  rules  of  usufruct. 

Art.  56.  The  property  of  the  communes,  that  of  religious,  char- 
itable, and  educational  institutions,  and  those  of  arts  and  science, 
even  when  State  property,  shall  be  treated  as  private  property. 

All  seizure  of,  and  destruction,  or  intentional  damage  done  to  such 
institutions,  to  historical  monuments,  works  of  art  or  science,  is  pro- 
hibited, and  should  be  made  the  subject  of  proceedings. 


APPENDIX  VI 

CONVENTION     RESPECTING    THE     RIGHTS     AND 

DUTIES   OF   NEUTRAL   POWERS  AND  PERSONS 

IN  CASE   OF    WAR  ON   LAND 

[Names  of  States.*] 

With  a  view  to  laying  down  more  clearly  the  rights  and  duties  of 
neutral  Powers  in  case  of  war  on  land  and  regulating  the  position  of 
the  belligerents  who  have  taken  refuge  in  neutral  territory; 

Being  likewise  desirous  of  defining  the  meaning  of  the  term  "neu- 
tral," pending  the  possibility  of  settling,  in  its  entirety,  the  position 
of  neutral  individuals  in  their  relations  with  the  belligerents ; 

Have  resolved  to  conclude  a  Convention  to  this  effect,  and  have,  in 
consequence,  appointed  the  following  as  their  Plenipotentiaries: 

[Names  of  Plenipotentiaries.] 

Who,  after  having  deposited  their  full  powers,  found  in  good  and 
due  form,  have  agreed  upon  the  following  provisions: 

Chapter  I.     The  Rights  and  Duties  of  Neutral  Powers 

Article  1.     The  territory  of  neutral  Powers  is  inviolable. 

Art.  2.  Belligerents  are  forbidden  to  move  troops  or  convoys  of 
either  munitions  of  war  or  supplies  across  the  territory  of  a  neutral 
Power, 

Art.  3.     Belligerents  are  likewise  forbidden  to: 

(a)  Erect  on  the  territory  of  a  neutral  Power  a  wireless  telegraphy 
station  or  other  apparatus  for  the  purpose  of  communicating  with 
belligerent  forces  on  land  or  sea. 

(6)  Use  any  installation  of  this  kind  established  by  them  before 
the  war  on  the  territory  of  a  neutral  Power  for  purely  military  pur- 
poses, and  which  has  not  been  opened  for  the  service  of  public  messages. 

'For  names  of  States  sec  Appendix  IV,  p.  389. 
420 


APPENDIX  VI  421 

Art.  4.  Corps  of  combatants  cannot  be  formed  nor  recruiting 
agencies  opened  on  the  territory  of  a  neutral  Power  to  assist  the 
belUgerents. 

Art.  5.  A  neutral  Power  must  not  allow  any  of  the  acts  referred 
to  in  Articles  2  to  4  to  occur  on  its  territory. 

It  is  not  called  upon  to  punish  acts  in  violation  of  its  neutraUty 
unless  the  said  acts  have  been  committed  on  its  own  territory. 

Art.  6.  The  responsibiUty  of  a  neutral  Power  is  not  engaged  by  the 
fact  of  persons  crossing  the  frontier  separately  to  offer  their  services 
to  one  of  the  belligerents. 

Art.  7.  A  neutral  Power  is  not  called  upon  to  prevent  the  export 
or  transport,  on  behalf  of  one  or  other  of  the  beUigerents,  of  arms, 
munitions  of  war,  or,  in  general,  of  anything  which  can  be  of  use  to 
an  army  or  a  fleet. 

Art.  8.  A  neutral  Power  is  not  called  upon  to  forbid  or  restrict  the 
use  on  behalf  of  the  beUigerents  of  telegraph  or  telephone  cables  or 
of  wireless  telegraphy  apparatus  belonging  to  it  or  to  companies  or 
private  individuals. 

Art.  9.  Every  measure  of  restriction  or  prohibition  taken  by  a 
neutral  Power  in  regard  to  the  matters  referred  to  in  Articles  7  and  8 
must  be  impartially  applied  by  it  to  both  belligerents. 

A  neutral  Power  must  see  to  the  same  obligation  being  observed 
by  companies  or  private  individuals  owning  telegraph  or  telephone 
cables  or  wireless  telegraphy  apparatus. 

Art.  10.  The  fact  of  a  neutral  Power  resisting,  even  by  force, 
attempts  to  violate  its  neutrality  cannot  be  regarded  as  a  hostile  act. 

Chapter  II.     Internment   of  Belligerents  and   Care  of    Wounded  in 

Neutral  Territory 

Art.  11.  A  neutral  Power  which  receives  on  its  territory  troops 
belonging  to  the  belligerent  armies  shall  intern  them,  as  far  as  possible, 
at  a  distance  from  the  theater  of  war. 

It  may  keep  them  in  camps  and  even  confine  them  in  fortresses  or  in 
places  set  apart  for  this  purpose. 

It  shall  decide  whether  officers  may  be  left  at  liberty  on  giving 
their  parole  not  to  leave  the  neutral  territory  without  permission. 

Art.  12.  In  the  absence  of  a  special  Convention  to  the  contrary, 
the  neutral  Power  shall  supply  the  interned  with  the  food,  clothing, 
and  relief  required  by  humanity. 


422  APPENDIX  VI 

At  the  conclusion  of  peace  the  expenses  caused  by  the  internment 
shall  be  made  good. 

Art.  13.  A  neutral  Power  which  receives  escaped  prisoners  of 
war  shall  leave  them  at  liberty.  If  it  allows  them  to  remain  in  its 
territory  it  may  assign  them  a  place  of  residence. 

The  same  rule  applies  to  prisoners  of  war  brought  by  troops  taking 
refuge  in  the  territory  of  a  neutral  Power. 

Art.  14.  A  neutral  Power  may  authorize  the  passage  into  its  ter- 
ritory of  the  sick  and  wounded  belonging  to  the  belligerent  armies,  on 
condition  that  the  trains  bringing  them  shall  carry  neither  personnel 
nor  material  of  war.  In  such  a  case,  the  neutral  Power  is  bound  to  take 
whatever  measures  of  safety  and  control  are  necessary  for  the  purpose. 

The  sick  or  wounded  brought  under  these  conditions  into  neutral 
territory  by  one  of  the  belligerents,  and  belonging  to  the  hostile  party, 
must  be  guarded  by  the  neutral  Power  so  as  to  insure  their  not  taking 
part  again  in  the  military  operations.  The  same  duty  shall  devolve 
on  the  neutral  State  with  regard  to  wounded  or  sick  of  the  other  army 
who  may  be  committed  to  its  care. 

Art.  15.  The  Geneva  Convention  applies  to  sick  and  wounded 
interned  in  neutral  territory. 

Chapter  III.     Neutral  Persons 

Art.  16.  The  nationals  of  a  State  which  is  not  taking  part  in  the 
war  are  considered  as  neutrals. 

Art.   17.     A  neutral  cannot  avail  himself  of  his  neutrality: 

(a)  If  he  commits  hostile  acts  against  a  belligerent; 

(b)  If  he  commits  acts  in  favor  of  a  belligerent,  particularly'if  he 
voluntarily  enlists  in  the  ranks  of  the  armed  force  of  one  of  the  parties. 

In  such  a  case,  the  neutral  shall  not  be  m.ore  severely  treated  by 
the  belligerent  as  against  whom  he  has  abandoned  his  neutrality 
than  a  national  of  the  other  belligerent  State  could  be  for  the  same 
act. 

Art.  18.  The  following  acts  shall  not  be  considered  as  committed 
in  favor  of  one  belligerent  in  the  sense  of  Article  17,  letter  (b): 

(a)  The  furnishing  of  supplies  or  loans  to  one  of  the  belligerents, 
provided  that  the  person  who  furnishes  the  supplies  or  who  makes 
the  loans  lives  neither  in  the  territory  of  the  other  party  nor  in  the 
territory  occupied  by  him,  and  that  the  supplies  do  not  come  from 
these  territories; 


APPENDIX  VI  423 

(6)  The  rendering  of  services  in  matters  of  police  or  civil  adminis- 
tration. 

Chapter  IV.    Railway  Material 

Art.  19.  Railway  material  coming  from  the  territory  of  neutral 
Powers,  whether  it  be  the  property  of  the  said  Powers  or  of  companies 
or  private  persons,  and  recognizable  as  such,  shall  not  be  requisitioned 
or  utilized  by  a  belligerent  except  where  and  to  the  extent  that  it  is 
absolutely  necessary.  It  shall  be  sent  back  as  soon  as  possible  to  the 
country  of  origin. 

A  neutral  Power  may  likewise,  in  case  of  necessity,  retain  and  utilize 
to  an  equal  extent  material  coming  from  the  territory  of  the  belligerent 
Power. 

Compensation  shall  be  paid  by  one  party  or  the  other  in  proportion 
to  the  material  used,  and  to  the  period  of  usage. 

Chapter  V.     Final  Provisions 

Art.  20.  The  provisions  of  the  present  Convention  do  not  apply 
except  between  Contracting  Powers,  and  then  only  if  all  the  belliger- 
ents are  parties  to  the  Convention. 

[Articles  providing  for  ratification  follow.] 


APPENDIX  VII 

CONVENTION  RELATIVE  TO  THE  STATUS  OF  ENEMY 

MERCHANT-SHIPS   AT   THE  OUTBREAK 

OF  HOSTILITIES 

[Names  of  States.'] 

Anxious  to  insure  the  security  of  international  commerce  against 
the  surprises  of  war,  and  wishing,  in  accordance  with  modern  prac- 
tice, to  protect  as  far  as  possible  operations  undertaken  in  good  faith 
and  in  process  of  being  carried  out  before  the  outbreak  of  hostilities, 
have  resolved  to  conclude  a  Convention  to  this  effect,  and  have  ap- 
pointed the  following  persons  as  their  Plenipotentiaries: 

[Names  of  Plenipotentiaries.] 

Who,  after  having  deposited  their  full  powers,  found  in  good  and 
due  form,  have  agreed  upon  the  following  provisions: 

Article  L  When  a  merchant-ship  belonging  to  one  of  the  bellig- 
erent Powers  is  at  the  commencement  of  hostilities  in  an  enemy  port, 
it  is  desirable  that  it  should  be  allowed  to  depart  freely,  either 
immediately,  or  after  a  reasonable  number  of  days  of  grace,  and  to 
proceed,  after  being  furnished  with  a  pass,  direct  to  its  port  of  des- 
tination or  any  other  port  indicated. 

The  same  rule  should  apply  in  the  case  of  a  ship  which  has  left  its 
last  port  of  departure  before  the  commencement  of  the  war  and  en- 
tered a  port  belonging  to  the  enemy  while  still  ignorant  that  hostilities 
had  broken  out. 

Art.  2.  A  merchant-ship  unable,  owing  to  circumstances  of  force 
majeure,  to  leave  the  enemy  port  within  the  period  contemplated  in 
the  above  Article,  or  which  was  not  allowed  to  leave,  cannot  be  con- 
fiscated. 

The  belligerent  may  only  detain  it,  without  payment  of  compensa- 
tion, but  subject  to  the  obligation  of  restoring  it  after  the  war,  or 
requisition  it  on  payment  of  compensation. 

*  For  names  of  States  see  Appendix  IV,  p.  389. 
424 


APPENDIX  VII  425 

Art.  3.  Enemy  merchant-ships  which  left  their  last  port  of  de- 
parture before  the  commencement  of  the  war,  and  are  encountered  on 
the  high  seas  while  still  ignorant  of  the  outbreak  of  hostilities  cannot 
be  confiscated.  They  are  only  Uable  to  detention  on  the  understand- 
ing that  they  shall  be  restored  after  the  war  without  compensation, 
or  to  be  requisitioned,  or  even  destroyed,  on  payment  of  compensation, 
but  in  such  case  provision  must  be  made  for  the  safety  of  the  persons 
on  board  as  well  as  the  security  of  the  ship's  papers. 

After  touching  at  a  port  in  their  own  country  or  at  a  neutral  port, 
these  ships  are  subject  to  the  laws  and  customs  of  maritime  war. 

Art.  4.  Enemy  cargo  on  board  the  vessels  referred  to  in  Articles 
1  and  2  is  likewise  Uable  to  be  detained  and  restored  after  the  termina- 
tion of  the  war  without  payment  of  compensation  or  to  be  requisi- 
tioned on  pajonent  of  compensation,  with  or  without  the  ship. 

The  same  rule  applies  in  the  case  of  cargo  on  board  the  vessels 
referred  to  in  Article  3. 

Art.  5.  The  present  Convention  does  not  affect  merchant-ships 
whose  build  shows  that  they  are  intended  for  conversion  into  war- 
ships. 

Art.  6.  The  provisions  of  the  present  Convention  do  not  apply 
except  between  Contracting  Powers,  and  then  only  if  all  the  belliger- 
ents are  parties  to  the  Convention. 

[Articles  providing  for  ratification  follow.] 


APPENDIX  VIII 

CONVENTION     FOR    THE    ADAPTATION    TO    NAVAL 
WAR   OF   THE    PRINCIPLES   OF  THE  GENEVA 

CONVENTION 

[Names  of  States.'] 

Animated  alike  by  the  desire  to  diminish,  as  far  as  depends  on  them, 
the  inevitable  evil&  of  war; 

And  wishing  with  this  object  to  adapt  to  maritime  warfare  the 
principles  of  the  Geneva  Convention  of  the  6th  July,  1906; 

Have  resolved  to  conclude  a  Convention  for  the  purpose  of  revising 
the  Convention  of  the  29th  July,  1899,  relative  to  this  question,  and 
have  appointed  the  following  as  their  Plenipotentiaries: 

[Names  of  Plenipotentiaries.] 

Who,  after  having  deposited  their  full  powers,  found  in  good  and 
due  form,  have  agreed  upon  the  following  provisions : 

Article  1.  Military  hospital-ships,  that  is  to  say,  ships  constructed 
or  assigned  by  States  specially  and  solely  with  a  view  to  assisting 
the  wounded,  sick,  and  shipwrecked,  the  names  of  which  have  been 
communicated  to  the  belligerent  Powers  at  the  commencement  or 
during  the  course  of  hostilities,  and  in  any  case  before  they  are  em- 
ployed, shall  be  respected,  and  cannot  be  captured  while  hostilities 
last. 

These  ships,  moreover,  are  not  on  the  same  footing  as  war-ships  as 
regards  their  stay  in  a  neutral  port. 

Art.  2.  Hosf)ital-ships,  equipped  wholly  or  in  part  at  the  expense 
of  private  individuals  or  officially  recognized  relief  societies,  shall  be 
likewise  respected  and  exempt  from  capture,  if  the  belligerent  Power 
to  whom  they  belong  has  given  them  an  official  commission  and  has 
notified  their  names  to  the  hostile  Power  at  the  commencement  of  or 
during  hostilities,  and  in  any  case  before  they  are  employed. 

*  For  names  of  States  see  Appendix  IV,  p.  389. 
426 


APPENDIX  VIII  427 

These  ships  must  be  provided  with  a  certificate  from  the  competent 
authorities  declaring  that  the  vessels  have  been  under  their  control 
while  fitting  out  and  on  final  departure. 

Art.  3.  Hospital-ships,  equipped  wholly  or  in  part  at  the  expense 
of  private  individuals  or  ofiicially  recognized  societies  of  neutral  coun- 
tries, shall  be  respected  and  exempt  from  capture,  on  condition  that 
they  are  placed  under  the  control  of  one  of  the  belligerents,  with  the 
previous  consent  of  their  own  Government  and  with  the  authorization 
of  the  belligerent  himself,  and  that  the  latter  has  notified  their  name 
to  liis  adversary  at  the  commencement  of  or  during  hostilities,  and  in 
any  case,  before  they  are  employed. 

Art,  4.  The  ships  mentioned  in  Articles  1,  2,  and  3  shall  afford 
relief  and  assistance  to  the  wounded,  sick,  and  shipwrecked  of  the 
belligerents  without  distinction  of  nationality. 

The  Governments  undertake  not  to  use  these  ships  for  any  miUtary 
purpose. 

These  vessels  must  in  no  wise  hamper  the  movements  of  the  com- 
batants. 

During  and  after  an  engagement  they  will  act  at  their  own  risk  and 
peril. 

The  belligerents  shall  have  the  right  to  control  and  visit  them ;  they 
can  refuse  their  help,  order  them  off,  make  them  take  a  certain  course, 
and  put  a  Commissioner  on  board;  they  can  even  detain  them,  if  im- 
portant circumstances  require  it. 

As  far  as  possible,  the  belligerents  shall  enter  in  the  log  of  the  hos- 
pital-ships the  orders  which  they  give  them. 

Art.  5.  Military  hospital-ships  shall  be  distinguished  by  being 
painted  white  outside  with  a  horizontal  band  of  green  about  a  metre 
and  a  half  in  breadth. 

The  ships  mentioned  in  Articles  2  and  3  shall  be  distinguished  by 
being  painted  white  outside  with  a  horizontal  band  of  red  about  a 
metre  and  a  half  in  breadth. 

The  boats  of  the  ships  above  mentioned,  as  also  small  craft  which 
may  be  used  for  hospital  work,  shall  be  distinguished  by  similar 
painting. 

All  hospital-ships  shall  make  themselves  known  by  hoisting,  with 
their  national  flag,  the  white  flag  with  a  red  cross  provided  by  the 
Geneva  Convention,  and  further,  if  they  belong  to  a  neutral  State,  by 
flying  at  the  mainmast  the  national  flag  of  the  belligerent  under  whose 
control  they  are  placed. 


428  APPENDIX  VIII 

Hospital-ships  which,  in  the  terms  of  Article  4,  are  detained  by  the 
enemy,  must  haul  down  the  national  flag  of  the  belligerent  to  whom 

they  belong. 

The  ships  and  boats  above  mentioned  which  wish  to  insure  by 
night  the  freedom  from  interference  to  which  they  are  entitled,  must, 
subject  to  the  assent  of  the  belligerent  they  are  accompanying,  take 
the  necessary  measures  to  render  their  special  painting  sufficiently 

plain. 

Art.  6.  The  distinguishing  signs  referred  to  in  Article  5  can  only 
be  used,  whether  in  time  of  peace  or  war,  for  protecting  or  indicating 
the  ships  therein  mentioned. 

Art.  7.  In  the  case  of  a  fight  on  board  a  war-ship,  the  sick-wards 
shall  be  respected  and  spared  as  far  as  possible. 

The  said  sick-wards  and  the  materiel  belonging  to  them  remain  sub- 
ject to  the  laws  of  war;  they  cannot,  however,  be  used  for  any  purpose 
other  than  that  for  which  they  were  originally  intended,  so  long  as 
they  are  required  for  the  sick  and  wounded. 

The  commander,  however,  into  whose  power  they  have  fallen  may 
apply  them  to  other  purposes,  if  the  military  situation  requires  it, 
after  seeing  that  the  sick  and  wounded  on  board  are  properly  provided 

for. 

Art.  8.  Hospital-ships  and  sick-wards  of  vessels  are  no  longer  en- 
titled to  protection  if  they  are  employed  for  the  purpose  of  injuring 
the  enemy. 

The  fact  of  the  staff  of  the  said  ships  and  sick-wards  being  armed 
for  maintaining  order  and  for  defending  the  sick  and  wounded,  and 
the  presence  of  wireless  telegraphy  apparatus  on  board,  is  not  a-  suf- 
ficient reason  for  withdrawing  protection. 

Art.  9.  Belligerents  may  appeal  to  the  charity  of  the  commanders 
of  neutral  merchant-ships,  yachts,  or  boats  to  take  on  board  and  tend 
the  sick  and  wounded. 

Vessels  responding  to  this  appeal,  and  also  vessels  which  have  of 
their  own  accord  rescued  sick,  wounded,  or  shipwrecked  men,  shall 
enjoy  special  protection  and  certain  immunities.  In  no  case  can 
they  be  captured  for  having  such  persons  on  board,  but,  subject 
to  special  promises  that  have  been  made  to  them,  they  remain 
liable  to  capture  for  any  violations  of  neutrality  they  may  have  com- 
mitted. 

Art.  10.  The  religious,  medical,  and  hospital  staff  of  any  cap- 
tured ship  is  inviolable,  and  its  members  cannot  be  made  prisoners 


APPENDIX  VIII  429 

of  war.  On  leaving  the  ship  they  take  away  with  them  the  objects 
and  surgical  instruments  which  are  tlieir  own  private  property. 

This  staff  shall  continue  to  discharge  its  duties  while  necessary, 
and  can  afterwards  leave,  when  the  Commander-in-chief  considers  it 
possible. 

The  belligerents  must  guarantee  to  the  said  staff,  when  it  has  fallen 
into  their  hands,  the  same  allowances  and  pay  which  are  given  to  the 
staff  of  corresponding  rank  in  their  own  navy. 

Art.  11.  Sailors  and  soldiers  on  board,  when  sick  or  wounded,  as 
well  as  other  persons  officially  attached  to  fleets  or  armies,  whatever 
their  nationality,  shall  be  respected  and  tended  by  the  captors. 

Art.  12.  Any  war-ship  belonging  to  a  belligerent  may  demand 
that  sick,  wounded,  or  shipwrecked  men  on  board  military  hospital- 
ships,  hospital-ships  belonging  to  relief  societies  or  to  private  individ- 
uals, merchant-ships,  yachts,  or  boats,  whatever  the  nationality  of 
these  vessels,  should  be  handed  over. 

Art.  13.  If  sick,  wounded,  or  shipwrecked  persons  are  taken  on 
board  a  neutral  war-ship,  every  possible  precaution  must  be  taken 
that  they  do  not  again  take  part  in  the  operations  of  the  war. 

Art.  14.  The  shipwrecked,  wounded,  or  sick  of  one  of  the  bellig- 
erents who  fall  into  the  power  of  the  other  belligerent  are  prisoners  of 
war.  The  captor  must  decide,  according  to  circumstances,  whether 
to  keep  them,  send  them  to  a  port  of  his  own  country,  to  a  neutral 
port,  or  even  to  an  enemy  port.  In  this  last  case,  prisoners  thus  re- 
patriated cannot  serve  again  while  the  war  lasts. 

Art.  15.  The  shipwrecked,  sick,  or  wounded,  who  are  landed  at  a 
neutral  port  with  the  consent  of  the  local  authorities,  must,  unless  an 
arrangement  is  made  to  the  contrary  between  the  neutral  State  and 
the  belligerent  States,  be  guarded  by  the  neutral  State  so  as  to  i:)re- 
vent  them  again  taking  part  in  the  operations  of  the  war. 

The  expenses  of  tending  them  in  hospital  and  interning  them  shall 
be  borne  by  the  State  to  which  the  shipwrecked,  sick,  or  wounded 
persons  belong. 

Art.  16.  After  every  engagement,  the  two  belligerents,  so  far  as 
military  interests  permit,  shall  take  steps  to  look  for  the  shipwrecked, 
sick,  and  wounded,  and  to  protect  them,  as  well  as  the  dead,  against 
pillage  and  ill  treatment. 

They  shall  see  that  the  burial,  whether  by  land  or  sea,  or  cremation 
of  the  dead  shall  be  preceded  by  a  careful  examination  of  the  corpses. 

Art.  17.     Each  belligerent  shall  send,  as  early  as  possible,  to  the 


430  APPENDIX  VIII 

authorities  of  their  country,  navy,  or  army  the  mihtary  marks  or  doc- 
uments of  identity  found  on  the  dead  and  the  description  of  the  sick 
and  wounded  picked  up  by  him. 

The  beUigerents  shall  keep  each  other  reciprocally  informed  as  to 
internments  and  transfers  as  well  as  to  the  admissions  into  hospital  and 
deaths  which  have  occurred  among  the  sick  and  wounded  in  their 
hands.  They  shall  collect  all  the  objects  of  personal  use,  valuables, 
letters,  etc.,  which  are  found  in  the  captured  ships,  or  which  have  been 
left  by  the  sick  or  wounded  who  died  in  hospital,  in  order  to  have 
them  forwarded  to  the  persons  concerned  by  the  authorities  of  their 
own  country. 

Art.  18.  The  provisions  of  the  present  Convention  do  not  apply 
except  between  Contracting  Powers,  and  then  only  if  all  the  belliger- 
ents are  parties  to  the  Convention. 

Art.  19.  The  Commanders-in-chief  of  the  belligerent  fleets  shall 
provide  for  the  execution  of  the  details  of  the  above  Articles,  as  also 
for  cases  not  covered  thereby,  in  accordance  with  the  instructions  of 
their  respective  Governments  and  in  conformity  with  the  general 
principles  of  the  present  Convention. 

Art.  20.  The  Signatory  Powers  shall  take  the  necessary  measures 
for  bringing  the  provisions  of  the  present  Convention  to  the  knowl- 
edge of  their  naval  forces,  and  especially  of  the  members  entitled 
thereunder  to  immunity,  and  for  making  them  known  to  the  public. 

Art.  21.  The  Signatory  Powers  likewise  undertake  to  enact  or  to 
propose  to  their  Legislatures,  if  their  criminal  laws  are  inadequate, 
the  measures  necessary  for  checking  in  time  of  war  individual  acts  of 
pillage  and  ill  treatment  in  respect  to  the  sick  and  wounded  in  the 
fleet,  as  well  as  for  punishing,  as  an  unjustifiable  adoption  of  naval  or 
military  marks,  the  unauthorized  use  of  the  distinctive  marks  men- 
tioned in  Article  5  by  vessels  not  protected  by  the  present  Convention. 

They  will  communicate  to  each  other,  through  the  Netherland  Gov- 
ernment, the  enactments  for  preventing  such  acts  at  the  latest  within 
five  years  of  the  ratification  of  the  present  Convention. 

Art.  22.  In  the  case  of  operations  of  war  between  the  land  and 
sea  forces  of  belligerents,  the  provisions  of  the  present  Convention  do 
not  apply  except  between  the  forces  actually  on  board  ship. 

[Articles  providing  for  ratification  follow.] 


APPENDIX  IX 

CONVENTION  WITH  REGARD  TO  THE  EXERCISE  OF 
THE  RIGHT   OF  CAPTURE  IN   NAVAL   WAR 

[Names  of  States.'] 

Recognizing  the  necessity  of  more  effectively  insuring  than  hith- 
erto the  equitable  application  of  law  to  the  maritime  international 
relations  in  time  of  war; 

Considering  that,  for  this  purpose,  it  is  expedient,  in  giving  up  or, 
if  necessary,  in  harmonizing  for  the  common  interest  certain  conflict- 
ing practices  of  long  standing,  to  commence  codifying  in  regulations 
of  general  application  the  guarantees  due  to  peaceful  commerce  and 
legitimate  business,  as  well  as  the  conduct  of  hostiHties  by  sea;  that 
it  is  expedient  to  lay  down  in  written  mutual  engagements  the  prin- 
ciples which  have  hitherto  remained  in  the  uncertain  domain  of  con- 
troversy or  have  been  left  to  the  discretion  of  Governments; 

That,  from  henceforth,  a  certain  number  of  rules  may  be  made, 
without  affecting  the  common  law  now  in  force  with  regard  to  the 
matters  which  that  law  has  left  unsettled ; 

Have  appointed  the  following  as  their  Plenipotentiaries: 

[Names  of  Plenipotentiaries.] 

Who,  after  having  deposited  their  full  powers,  found  in  good  and 
due  form,  have  agreed  upon  the  following  provisions : 

Chapter  I.     Postal  Correspondence 

Article  1.  The  postal  correspondence  of  neutrals  or  belligerents, 
whatever  its  official  or  private  character  may  be,  found  on  the  high 
seas  on  board  a  neutral  or  enemy  ship,  is  inviolable.  If  the  ship  is 
detained,  the  correspondence  is  forwarded  by  the  captor  with  the 
least  possible  delay. 

*  For  names  of  States  see  Appendix  IV,  p.  389. 
431 


432  APPENDIX  IX 

The  provisions  of  the  preceding  paragraph  do  not  apply,  in  case  of 
violation  of  blockade,  to  correspondence  destined  for  or  proceeding 
from  a  blockaded  port. 

Art.  2.  The  inviolabiUty  of  postal  correspondence  does  not  ex- 
empt a  neutral  mail-ship  from  the  laws  and  customs  of  maritime  war 
as  to  neutral  merchant-ships  in  general.  The  ship,  however,  may  not 
be  searched  except  when  absolutely  necessary,  and  then  only  with  as 
much  consideration  and  expedition  as  possible. 

Chapter  II.     The  Exemption  from  Capture  of  Certain  Vessels 

Art.  3.  Vessels  used  exclusively  for  fishing  along  the  coast  or 
small  boats  employed  in  local  trade  are  exempt  from  capture,  as  well 
as  their  appliances,  rigging,  tackle,  and  cargo. 

They  cease  to  be  exempt  as  soon  as  they  take  any  part  whatever  in 
hostilities. 

The  Contracting  Powers  agree  not  to  take  advantage  of  the  harmless 
character  of  the  said  vessels  in  order  to  use  them  for  military  pur- 
poses while  preserving  their  peaceful  appearance. 

Art.  4.  Vessels  charged  with  religious,  scientific,  or  philanthropic 
missions  are  likewise  exempt  from  capture. 

Chapter  III.     Regulations  Regarding  the  Crews  of  Enemy  Merchant- 
Ships  Captured  by  a  Belligerent 

Art.  5.  When  an  enemy  merchant-ship  is  captured  by  a  belliger- 
ent, such  of  its  crew  as  are  nationals  of  a  neutral  State  are  not  made 
prisoners  of  war. 

The  same  rule  applies  in  the  case  of  the  captain  and  officers  likewise 
nationals  of  a  neutral  State,  if  they  promise  formally  in  writing  not 
to  serve  on  an  enemy  ship  while  the  war  lasts. 

Art.  6.  The  captain,  officers,  and  members  of  the  crew,  when 
nationals  of  the  enemy  State,  are  not  made  prisoners  of  war,  on  con- 
dition that  they  make  a  formal  promise  in  writing,  not  to  undertake, 
while  hostilities  last,  any  service  connected  with  the  operations  of  the 
war. 

Art.  7.  The  names  of  the  persons  retaining  their  liberty  under 
the  conditions  laid  down  in  Article  5,  paragraph  2,  and  in  Article  6, 
are  notified  by  the  belligerent  captor  to  the  other  belligerent.  The 
latter  is  forbidden  knowingly  to  employ  the  said  persons. 


APPENDIX  IX  433 

Art.  8.  The  provisions  of  the  three  preceding  Articles  do  not  ap- 
ply to  ships  taking  part  in  the  hostilities. 

Chapter  IV.     Final  Provisions 

x\.RT.  9.  The  provisions  of  the  present  Convention  do  not  apply 
except  between  Contracting  Powers,  and  then  only  if  all  the  belliger- 
ents are  parties  to  the  Convention. 

[Articles  providing  for  ratification  follow.] 


APPENDIX  X 

CONVENTION    RELATIVE    TO    THE    CREATION    OF 
AN  INTERNATIONAL   PRIZE  COURT 

[Names  of  States.'] 

Animated  by  the  desire  to  settle  in  an  equitable  manner  the  differ- 
ences which  sometimes  arise  in  the  course  of  a  naval  war  in  connec- 
tion with  the  decisions  of  National  Prize  Courts; 

Considering  that,  if  these  Courts  are  to  continue  to  exercise  their 
functions  in  the  manner  determined  by  national  legislation  it  is  desir- 
able that  in  certain  cases  an  aj^peal  should  be  provided,  under  condi- 
tions conciliating,  as  far  as  possible,  the  public  and  private  interests 
involved  in  matters  of  prize ; 

Considering,  moreover,  the  institution  of  an  International  Court, 
whose  jurisdiction  and  procedure  would  be  carefully  defined,  has 
seemed  to  be  the  best  method  of  attaining  this  object ; 

Convinced,  finally,  that  in  this  manner  the  hardships  consequent 
on  naval  war  would  be  mitigated;  that,  in  particular,  good  relations 
will  be  more  easily  maintained  between  belligerents  and  neutrals  and 
peace  better  assured ; 

Desirous  of  concluding  a  Convention  to  this  effect,  have  appointed 
the  following  as  their  Plenipotentiaries: 

[Names  of  Plenipotentiaries.] 

Who,  after  de])ositing  their  full  powers,  foimd  in  good  and  due 
form,  have  agreed  upon  the  following  provisions: 

Pakt  I.     General  Provisions 

Article  1.  The  validity  of  the  capture  of  a  merchant-ship  or  its 
cargo  is  decided  before  a  Prize  Court  in  accordance  with  the  present 
Convention  when  neutral  or  enemy  property  is  involved. 

'  For  names  of  States  see  Appendix  IV,  p.  389. 
434 


APPENDIX  X  435 

Art.  2.  Jurisdiction  in  matters  of  prize  is  exercised  in  the  first 
instance  by  the  Prize  Courts  of  the  belligerent  captor. 

The  judgments  of  these  Courts  are  pronoimced  in  jjublic  or  are 
officially  notified  to  parties  concerned  who  are  neutrals  or  enemies. 

Art.  3.  The  judgments  of  National  Prize  Courts  may  be  brought 
before  the  International  Prize  Court — 

1.  When  the  judgment  of  the  National  Prize  Courts  affects  the 
property  of  a  neutral  Power  or  individual; 

2.  When  the  judgment  affects  enemy  property  and  relates  to — 
(a)  Cargo  on  board  a  neutral  ship ; 

(6)  An  enemy  ship  captured  in  the  territorial  waters  of  a  neutral 
Power,  when  that  Power  has  not  made  the  capture  the  subject  of  a 
diplomatic  claim; 

(c)  A  claim  based  upon  the  allegation  that  the  seizure  has  been 
effected  in  violation,  either  of  the  provisions  of  a  Convention  in  force 
between  the  belligerent  Powers,  or  of  an  enactment  issued  by  the 
belligerent  captor. 

The  appeal  against  the  judgment  of  the  National  Court  can  be 
based  on  the  ground  that  the  judgment  was  wrong  either  in  fact  or  in 
law. 

Art.  4.     An  appeal  may  be  brought — 

1.  By  a  neutral  Power,  if  the  judgment  of  the  National  Tribunals 
injuriously  afYects  its  property  or  the  property  of  its  nationals  (Article 
3  (1)  ),  or  if  the  capture  of  an  enemy  vessel  is  alleged  to  have  taken 
place  in  the  territorial  waters  of  that  Power  (Article  3  (2)  (b)  ); 

2.  By  a  neutral  individual,  if  the  judgment  of  the  National  Court 
injuriously  affects  his  property  (Article  3  (1)  ),  subject,  however,  to 
the  reservation  that  the  Power  to  which  he  belongs  may  forbid  him 
to  bring  the  case  before  the  Court,  or  may  itself  undertake  the  pro- 
ceedings in  his  place ; 

3.  By  an  individual  subject  or  citizen  of  an  enemy  Power,  if  the 
judgment  of  the  National  Court  injuriously  affects  his  property  in  the 
cases  referred  to  in  Article  3  (2),  except  that  mentioned  in  paragraph 
(b). 

Art.  5.  An  appeal  may  also  be  brought  on  the  same  conditions  as 
in  the  preceding  Article,  by  persons  belonging  either  to  neutral  States 
or  to  the  enemy,  deriving  their  rights  from  and  entitled  to  represent 
an  individual  qualified  to  appeal,  and  who  have  taken  part  in  the  pro- 
ceedings before  the  National  Court.  Persons  so  entitled  may  appeal 
separately  to  the  extent  of  their  interest. 


436  APPENDIX  X 

The  same  rule  applies  in  the  case  of  persons  belonging  either  to 
neutral  States  or  to  the  enemy  who  derive  their  rights  from  and  are 
entitled  to  represent  a  neutral  Power  whose  property  was  the  subject 
of  the  decision. 

Aht.  6.  When,  in  accordance  with  the  above  Article  3,  the  Inter- 
national Court  has  jurisdiction,  the  National  Coiu-ts  cannot  deal  with 
a  case  in  more  than  two  instances.  The  municipal  law  of  the  bellig- 
erent captor  shall  decide  whether  the  case  may  be  brought  before  the 
International  Court  after  judgment  has  been  given  in  first  instance  or 
only  after  an  appeal. 

If  the  National  Courts  fail  to  give  final  judgment  within  two  years 
from  the  date  of  capture,  the  case  may  be  carried  direct  to  the  Inter- 
national Court. 

Art.  7.  If  a  question  of  law  to  be  decided  is  covered  by  a  Treaty 
in  force  between  the  belligerent  captor  and  a  Power  which  is  itself  or 
whose  subject  or  citizen  is  a  party  to  the  proceedings,  the  Court  is 
governed  by  the  provisions  of  the  said  Treaty. 

In  the  absence  of  such  provisions,  the  Court  shall  apply  the  rules 
of  international  law.  If  no  generally  recognized  rule  exists,  the  Court 
shall  give  judgment  in  accordance  with  the  general  principles  of  justice 
and  equity. 

The  above  provisions  apply  equally  to  questions  relating  to  the 
order  and  mode  of  proof. 

If,  in  accordance  with  Article  3  (2)  (c),  the  ground  of  appeal  is  the 
violation  of  an  enactment  issued  by  the  belligerent  captor,  the  Court  will 
enforce  the  enactment. 

The  Court  may  disregard  failure  to  comply  with  the  procedure  laid 
down  in  the  enactments  of  the  belligerent  captor,  when  it  is  of  opinion 
that  the  consequences  of  complying  therewith  are  unjust  and  inequi- 
table. 

Art.  8.  If  the  Court  pronounces  the  capture  of  the  vessel  or  cargo 
to  be  valid,  they  shall  be  disposed  of  in  accordance  with  the  laws  of  the 
belligerent  captor. 

If  it  pronounces  the  capture  to  be  null,  the  Court  shall  order  resti- 
tution of  the  vessel  or  cargo,  and  shall  fix,  if  there  is  occasion,  the 
amount  of  the  damages.  If  the  vessel  or  cargo  have  been  sold  or  de- 
stroyed, the  Court  shall  determine  the  comj^ensation  to  be  given  to 
the  owner  on  this  account. 

If  the  National  Court  pronounced  the  capture  to  be  null,  the  Court 
can  only  be  asked  to  decide  as  to  the  damages. 


APPENDIX  X  437 

Art.  9.  The  Contracting  Powers  undertake  to  submit  in  good 
faith  to  the  decisions  of  the  International  Prize  Court  and  to  carry 
them  out  with  the  least  possible  delay. 

Part  II.     Constitution  of  the  International  Prize  Court 

Art.  10.  The  International  Prize  Court  is  composed  of  Judges  and 
Deputy  Judges,  who  will  be  appointed  by  the  Contracting  Powers, 
and  must  all  be  jurists  of  known  proficiency  in  questions  of  inter- 
national maritime  law,  and  of  the  highest  moral  reputation. 

The  appointment  of  these  Judges  and  Deputy  Judges  shall  be  made 
within  six  months  after  the  ratification  of  the  present  Convention. 

Art.  11.  The  Judges  and  Deputy  Judges  are  appointed  for  a 
period  of  six  years,  reckoned  from  the  date  on  which  the  notification 
of  their  appointment  is  received  by  the  Administrative  Council  estab- 
lished by  the  Convention  for  the  Pacific  Settlement  of  International 
Disputes  of  the  29th  July,  1899.     Their  appointments  can  be  renewed. 

Should  one  of  the  Judges  or  Deputy  Judges  die  or  resign,  the  same 
procedure  is  followed  for  filling  the  vacancy  as  was  followed  for  ap- 
pointing him.  In  this  case,  the  appointment  is  made  for  a  fresh 
period  of  six  years. 

Art.  12.  The  Judges  of  the  International  Prize  Court  are  all 
equal  in  rank  and  have  precedence  according  to  the  date  on  which  the 
notification  of  their  appointment  was  received  (Article  11,  paragraph 
1),  and  if  they  sit  by  rota  (Article  15,  paragraph  2),  according  to  the 
date  on  which  they  entered  upon  their  duties.  \\Tien  the  date  is  the 
same  the  senior  in  age  takes  precedence. 

The  Deputy  Judges  when  acting  are  assimilated  to  the  Judges. 
They  rank,  however,  after  them. 

Art.  13.  The  Judges  enjoy  diplomatic  privileges  and  immunities 
in  the  performance  of  their  duties  and  when  outside  their  own  country. 

Before  taking  their  seat,  the  Judges  must  swear,  or  make  a  solemn 
promise  before  the  Administrative  Council,  to  discharge  their  duties 
impartially  and  conscientiously. 

Art.  14.  The  Court  is  composed  of  fifteen  Judges;  nine  Judges 
constitute  a  quorum. 

A  Judge  who  is  absent  or  prevented  from  sitting  is  replaced  by  the 
Deputy  Judge. 

Art.  15.  The  Judges  appointed  by  the  following  Contracting 
Powers:  Germany,  the  United  States  of  America,  Austria-Hungary, 


438  APPENDIX  X 

France,  Great  Britain,  Italy,  Japan,  and  Russia,  are  always  sum- 
moned to  sit. 

The  Judges  and  Deputy  Judges  appointed  by  the  other  Contract- 
ing Powers  sit  by  rota  as  shown  in  the  Table  annexed  to  the  present 
Convention ;  their  duties  may  be  performed  successively  by  the  same 
person.     The  same  Judge  may  be  appointed  by  several  of  the  said 

Powers. 

Art.  16.  If  a  belligerent  Power  has,  according  to  the  rota,  no 
Judge  sitting  in  the  Court,  it  may  ask  that  the  Judge  appointed  by  it 
should  take  part  in  the  settlement  of  all  cases  arising  from  the  war. 
Lots  shall  then  be  drawn  as  to  which  of  the  Judges  entitled  to  sit  ac- 
cording to  the  rota  shall  withdraw.  This  arrangement  does  not  affect 
tlie  Judge  appointed  by  the  other  belligerent. 

Art.  17.  No  Judge  can  sit  who  has  been  a  party,  in  any  way  what- 
ever, to  the  sentence  pronounced  by  the  National  Courts,  or  has  taken 
part  in  the  case  as  counsel  or  advocate  for  one  of  the  parties. 

No  Judge  or  Deputy  Judge  can,  during  his  tenure  of  office,  appear  as 
agent  or  advocate  before  the  International  Prize  Court,  nor  act  for 
one  of  the  parties  in  any  capacity  whatever. 

Art.  18.  The  belligerent  captor  is  entitled  to  appoint  a  naval  offi- 
cer of  high  rank  to  sit  as  Assessor,  but  with  no  voice  in  the  decision, 
A  neutral  Power,  which  is  a  party  to  the  proceedings  or  whose  subject 
or  citizen  is  a  party,  has  the  same  right  of  appointment;  if  as  the  result 
of  this  last  provision  more  than  one  Power  is  concerned,  they  must 
agree  among  themselves,  if  necessary  by  lot,  on  the  officer  to  be  ap- 
pointed. 

Art.  19.  The  Court  elects  its  President  and  Vice-President  by  an 
absolute  majority  of  the  votes  cast.  After  two  ballots,  the  election 
is  made  by  a  bare  majority,  and,  in  case  the  votes  are  equal,  by  lot. 

Art.  20.  The  Judges  on  the  International  Prize  Court  are  entitled 
to  traveling  allowances  in  accordance  with  the  regulations  in  force 
in  their  own  country,  and  in  addition  receive,  while  the  Court  is  sit- 
ting or  while  they  are  carrying  out  duties  conferred  upon  them  by  the 
Court,  a  sum  of  100  Nethcrland  florins  per  diem. 

These  payments  are  included  in  the  general  expenses  of  the  Court 
dealt  with  in  Article  47,  and  are  paid  through  the  International  Bu- 
reau established  by  the  Convention  of  the  29th  July,  1899. 

Th(>  Judges  may  not  receive  from  their  own  Government  or  from 
that  of  any  other  Power  any  remuneration  in  their  capacity  of  members 
of  the  Court. 


APPENDIX  X  439 

Art.  21.  The  seat  of  the  International  Prize  Court  is  at  The  Hague 
and  it  cannot,  except  in  the  case  of  force  majeure,  be  transferred  else- 
where without  the  consent  of  the  belligerents. 

Art.  22.  The  Administrative  Council  fulfills,  with  regard  to  the 
International  Prize  Court,  the  same  functions  as  to  the  Permanent 
Court  of  Arbitration,  but  only  Representatives  of  Contracting  Powers 
will  be  members  of  it. 

Art.  23.  The  International  Bureau  acts  as  registry  to  the  Inter- 
national Prize  Court  and  must  place  its  offices  and  staff  at  the  disposal 
of  the  Court.  It  has  charge  of  the  archives  and  carries  out  the  admin- 
istrative work. 

The  Secretary-General  of  the  International  Bureau  acts  as  Registrar. 

The  necessary  secretaries  to  assist  the  Registrar,  translators  and 
shorthand  writers  are  appointed  and  sworn  in  by  the  Court. 

Apt.  24.  The  Court  determines  which  language  it  will  itself  use 
and  what  languages  may  be  used  before  it. 

In  every  case  the  official  language  of  the  National  Courts  which  have 
had  cognizance  of  the  case  may  always  be  used  before  the  Court. 

Art.  25.  Powers  which  are  concerned  in  a  case  may  appoint 
special  agents  to  act  as  intermediaries  between  themselves  and  the 
Court.  They  may  also  engage  counsel  or  advocates  to  defend  their 
rights  and  interests. 

Art.  26.  A  private  person  concerned  in  a  case  will  be  represented 
before  the  Court  by  an  attorney,  who  must  be  either  an  advocate  qual- 
ified to  plead  before  a  Court  of  Appeal  or  a  High  Court  of  one  of  the 
Contracting  States,  or  a  lawyer  practising  before  a  similar  Court,  or 
lastly,  a  professor  of  law  at  one  of  the  higher  teaching  centers  of  those 
countries. 

Art.  27.  For  all  notices  to  be  served,  in  particular  on  the  parties, 
witnesses,  or  experts,  the  Court  may  apply  direct  to  the  Government 
of  the  State  on  whose  territory  the  service  is  to  be  carried  out.  The 
same  rule  apphes  in  the  case  of  steps  being  taken  to  procure  evidence. 

The  requests  for  this  purpose  are  to  be  executed  so  far  as  the  means 
at  the  disposal  of  the  Power  applied  to  under  its  municipal  law  allow. 
They  cannot  be  rejected  unless  the  Power  in  question  considers  them 
calculated  to  impair  its  sovereign  rights  or  its  safety.  If  the  request 
is  complied  with,  the  fees  charged  must  only  comprise  the  expenses 
actually  incurred. 

The  Court  is  equally  entitled  to  act  through  the  Power  on  whose 
territory  it  sits. 


440  APPENDIX  X 

Notices  to  be  given  to  parties  in  the  place  where  the  Court  sits  may 
be  served  through  the  International  Bureau. 

Part  III.     Procedure  in  the  International  Prize  Court 

Art.  28.  An  appeal  to  the  International  Prize  Court  is  entered  by 
means  of  a  written  declaration  made  in  the  National  Court  which 
has  already  dealt  with  the  case  or  addressed  to  the  International  Bu- 
reau; in  the  latter  case  the  appeal  can  be  entered  by  telegram. 

The  period  within  which  the  appeal  must  be  entered  is  fixed  at  120 
days,  counting  from  the  day  the  decision  is  delivered  or  notified  (Arti- 
cle 2,  paragraph  2). 

Art.  29.  If  the  notice  of  appeal  is  entered  in  the  National  Court, 
this  Court,  without  considering  the  question  whether  the  appeal  was 
entered  in  due  time,  will  transmit  within  seven  days  the  record  of  the 
case  to  the  International  Bureau. 

If  the  notice  of  the  appeal  is  sent  to  the  International  Bureau,  the 
Bureau  will  immediately  inform  the  National  Court,  when  possible  by 
telegraph.  The  latter  will  transmit  the  record  as  provided  in  the 
preceding  paragraph. 

When  the  appeal  is  brought  by  a  neutral  individual  the  International 
Bureau  at  once  informs  by  telegraph  the  individual's  Government,  in 
order  to  enable  it  to  enforce  the  rights  it  enjoys  under  Article  4,  para- 
graph 2. 

Art.  30.  In  the  case  provided  for  in  Article  6,  paragraph  2,  the 
notice  of  appeal  can  be  addressed  to  the  International  Bureau  only. 
It  must  be  entered  within  thirty  days  of  the  expiration  of  the  period 
of  two  years. 

Art.  31.  If  the  appellant  does  not  enter  his  appeal  within  the 
period  laid  down  in  Articles  28  or  30,  it  shall  be  rejected  without 
discussion. 

Provided  that  he  can  show  that  he  was  prevented  from  so  doing  by 
force  majeure,  and  that  the  appeal  was  entered  within  sixty  days  after 
the  circumstances  which  prevented  him  entering  it  before  had  ceased 
to  operate,  the  Court  can,  after  hearing  the  respondent,  grant  relief 
from  the  effect  of  the  above  provision. 

Art.  32.  If  the  appeal  is  entered  in  time,  a  certified  copy  of  the 
notice  of  appeal  is  forthwith  officially  transmitted  by  the  Court  to  the 
respondent. 

Art.  33.     If,  in  addition  to  the  parties  who  are  before  the  Court, 


APPENDIX  X  441 

there  are  other  parties  concerned  who  are  entitled  to  appeal,  or  if  in 
the  case  referred  to  in  Article  29,  paragraph  3,  the  Government  who 
has  received  notice  of  an  appeal  has  not  announced  its  decision,  the 
Court  will  await  before  dealing  with  the  case  the  expiration  of  the 
period  laid  down  in  Articles  28  or  30. 

Art.  34.  The  procedure  before  the  International  Court  includes 
two  distinct  parts :  the  written  pleadings  and  oral  discussions. 

The  written  pleadings  consist  of  the  deposit  and  exchange  of  cases, 
counter-cases,  and,  if  necessary,  of  rephes,  of  which  the  order  is  fixed 
by  the  Court,  as  also  the  periods  within  which  they  must  be  delivered. 
The  parties  annex  thereto  all  papers  and  documents  of  which  they 
intend  to  make  use. 

A  certified  copy  of  every  document  produced  by  one  party  must  be 
communicated  to  the  other  party  through  the  medium  of  the  Court. 

Art.  35.  After  the  close  of  the  pleadings,  a  public  sitting  is  held  on 
a  day  fixed  by  the  Court. 

At  this  sitting  the  parties  state  their  view  of  the  case  both  as  to  the 
law  and  as  to  the  facts. 

The  Court  may,  at  any  stage  of  the  proceedings,  suspend  speeches 
of  counsel,  either  at  the  request  of  one  of  the  parties,  or  on  their  own 
initiative,  in  order  that  supplementary  evidence  may  be  obtained. 

Art.  36.  The  International  Court  may  order  the  supplementary 
evidence  to  be  taken  either  in  the  manner  provided  by  Article  27,  or 
before  itself,  or  one  or  more  of  the  members  of  the  Court,  pro\ided 
that  this  can  be  done  without  resort  to  compulsion  or  the  use  of 
threats. 

If  steps  are  to  be  taken  for  the  purpose  of  obtaining  evidence  by 
members  of  the  Court  outside  the  territory  where  it  is  sitting,  the  con- 
sent of  the  foreign  Government  must  be  obtained. 

Art.  37.  The  parties  are  summoned  to  take  part  in  all  stages  of  the 
proceedings  and  receive  certified  copies  of  the  Minutes. 

Art.  38.  The  discussions  are  under  the  control  of  the  President  or 
Vice-President,  or,  in  case  they  are  absent  or  cannot  act,  of  the  senior 
Judge  present. 

The  Judge  appointed  by  a  belligerent  party  may  not  preside. 

Art.  39.  The  discussions  take  place  in  pubUc,  subject  to  the  right 
of  a  Government  who  is  a  party  to  the  case  to  demand  that  they  be 
held  in  private. 

Minutes  are  taken  of  these  discussions  and  signed  by  the  President 
and  Registrar,  and  these  Minutes  alone  have  an  authentic  character. 


442  APPENDIX  X 

Art.  40.  If  a  party  does  not  appear,  despite  the  fact  that  he  has 
been  duly  cited,  or  if  a  party  fails  to  comply  with  some  step  within 
the  period  fixed  by  the  Court,  the  case  proceeds  without  that  party, 
and  the  Court  gives  judgment  in  accordance  with  the  material  at  its 
disposal. 

Art.  41.  The  Court  officially  notifies  to  the  parties  all  judgments 
or  orders  made  in  their  absence. 

Art.  42.  The  Court  takes  into  consideration  in  arriving  at  its  de- 
cision all  the  facts,  evidence,  and  oral  statements. 

Art.  43.  The  Court  considers  its  decision  in  private  and  the  pro- 
ceedings are  secret. 

All  questions  are  decided  by  a  majority  of  the  Judges  present.  If 
the  number  of  Judges  is  even  and  equally  divided,  the  vote  of  the  junior 
Judge  in  the  order  of  precedence  laid  down  in  Article  12,  paragraph  1, 
is  not  counted. 

Art.  44.  The  judgment  of  the  Court  must  give  the  reasons  on 
which  it  is  based.  It  contains  the  names  of  the  Judges  taking  part  in 
it,  and  also  of  the  Assessors,  if  any;  it  is  signed  by  the  President  and 
Registrar. 

Art.  45.  The  sentence  is  pronounced  in  public  sitting,  the  parties 
concerned  being  present  or  duly  summoned  to  attend;  the  sentence  is 
officially  communicated  to  the  parties. 

When  this  communication  has  been  made,  the  Court  transmits  to 
the  National  Prize  Court  the  record  of  the  case,  together  with  copies 
of  the  various  decisions  arrived  at  and  of  the  Minutes  of  the  proceed- 
ings. 

Art.  46.     Each  party  pays  its  own  costs. 

The  party  against  whom  the  Court  decides  bears,  in  addition,  the 
costs  of  the  trial,  and  also  pays  1  per  cent,  of  the  value  of  the  subject- 
matter  of  the  case  as  a  contribution  to  the  general  expenses  of  the 
International  Court.  The  amount  of  these  payments  is  fixed  in  the 
jutlgment  of  the  Court. 

If  the  api)eal  is  brought  by  an  individual,  he  will  furnish  the  Inter- 
national Bureau  with  security  to  an  amount  fixed  by  the  Court,  for 
the  puqioso  of  guaranteeing  eventual  fulfilment  of  the  two  obligations 
mentioned  in  the  preceding  paragraph.  The  Court  is  entitled  to  post- 
pone the  opening  of  the  proceedings  until  the  security  has  been  fur- 
nished. 

Art.  47.  The  general  expenses  of  the  International  Prize  Court 
are  borne  by  the  Contracting  Powers  in  proportion  to  their  share  in 


APPENDIX  X  443 

the  composition  of  the  Court  as  laid  down  in  Article  15  and  in  the  an- 
nexed Table.  The  appointment  of  Deputy  Judges  does  not  involve 
any  contribution. 

The  Administrative  Council  applies  to  the  Powers  for  the  funds 
requisite  for  the  working  of  the  Court. 

Art.  48.  When  the  Court  is  not  sitting,  the  duties  conferred  upon 
it  by  Article  32,  Article  34,  paragraphs  2  and  3,  Article  35,  paragraph 
1,  and  Article  46,  paragraph  3,  are  discharged  by  a  delegation  of  three 
Judges  appointed  by  the  Court.  This  delegation  decides  by  a  majority 
of  votes. 

Art.  49.  The  Court  itself  draws  up  its  own  rules  of  procedure, 
which  must  be  communicated  to  the  Contracting  Powers. 

It  will  meet  to  elaborate  these  rules  within  a  year  of  the  ratification 
of  the  present  Convention. 

Art.  50.  The  Court  may  propose  modifications  in  the  provisions 
of  the  present  Convention  concerning  procedure.  These  proposals 
are  communicated,  through  the  medium  of  the  Netherland  Govern- 
ment, to  the  Contracting  Powers,  which  will  consider  together  as  to 
the  measures  to  be  taken. 

Part  IV.     Final  Provisions 

Art.  51.  The  present  Convention  does  not  apply  as  of  right  except 
when  the  belligerent  Powers  are  all  parties  to  the  Convention. 

It  is  further  fully  understood  that  an  appeal  to  the  International 
Prize  Court  can  only  be  brought  by  a  Contracting  Power  or  the 
subject  or  citizen  of  a  Contracting  Power. 

In  the  cases  mentioned  in  Article  5,  the  appeal  is  only  admitted 
when  both  the  owner  and  the  person  entitled  to  represent  him  are 
equally  Contracting  Powers  or  the  subjects  or  citizens  of  Contracting 
Powers. 

[Articles  providing  for  ratification  follow.] 


APPENDIX  XI 

CONVENTION     CONCERNING     THE      RIGHTS      AND 
DUTIES  OF  NEUTRAL  POWERS  IN  NAVAL  WAR 

[Names  of  States. >] 

With  a  view  to  harmonizing  the  divergent  views  which,  in  the  event 
of  naval  war,  are  still  held  on  the  relations  between  neutral  Powers 
and  belligerent  Powers,  and  to  anticipating  the  difficulties  to  which 
such  divergence  of  views  might  give  rise ; 

Seeing  that,  even  if  it  is  not  possible  at  present  to  concert  measures 
applicable  to  all  circumstances  which  may  in  practice  occur,  it  is 
nevertheless  undeniably  advantageous  to  frame,  as  far  as  possible, 
rules  of  general  application  to  meet  the  case  where  war  has  unfortu- 
nately broken  out ; 

Seeing  that,  in  cases  not  covered  by  the  present  Convention,  it  is 
expedient  to  take  into  consideration  the  general  principles  of  the  law 
of  nations ; 

Seeing  that  it  is  desirable  that  the  Powers  should  issue  detailed 
enactments  to  regulate  the  results  of  the  attitude  of  neutrality  when 
adopted  by  them ; 

Seeing  that  it  is,  for  neutral  Powers,  an  admitted  duty  to  apply  these 
rules  impartially  to  the  several  belligerents ; 

Seeing  that,  in  conformity  with  these  ideas,  these  rules  should  not, 
in  principle,  be  altered,  in  the  course  of  the  war,  by  a  neutral  Power, 
except  in  a  case  where  experience  has  shown  the  necessity  for  such 
change  for  the  protection  of  the  rights  of  that  Power; 

Have  agreed  to  observe  the  following  common  rules,  which  cannot 
however  modify  provisions  laid  down  in  existing  general  Treaties,  and 
have  appointed  as  their  Plenipotentiaries,  namely: 

[Names  of  Plenipotentiaries.] 

■  For  names  of  States  see  Appendix  IV,  p.  389. 
444 


APPENDIX  XI  445 

Who,  after  having  deposited  their  full  powers,  found  in  good  and 
due  form,  have  agreed  upon  the  following  provisions: 

Article  1.  Belligerents  are  bound  to  respect  the  sovereign  rights  of 
neutral  Powers  and  to  abstain,  in  neutral  territory  or  neutral  waters, 
from  any  act  which  would,  if  knowingly  permitted  by  any  Power,  con- 
stitute a  violation  of  neutraUty. 

Art.  2.  Any  act  of  hostility,  including  capture  and  the  exercise  of 
the  right  of  search,  committed  by  belligerent  war-ships  in  the  terri- 
torial waters  of  a  neutral  Power,  constitutes  a  violation  of  neutrality 
and  is  strictly  forbidden. 

Art.  3.  When  a  ship  has  been  captured  in  the  territorial  waters 
of  a  neutral  Power,  this  Power  must  employ,  if  the  prize  is  stiU  within 
its  jurisdiction,  the  means  at  its  disposal  to  release  the  prize  with  its 
officers  and  crew,  and  to  intern  the  prize  crew. 

If  the  prize  is  not  in  the  jurisdiction  of  the  neutral  Power,  the  cap- 
tor Government,  on  the  demand  of  that  Power,  must  liberate  the  prize 
with  its  officers  and  crew. 

Art.  4.  A  Prize  Court  cannot  be  set  up  by  a  belligerent  on  neu- 
tral territory  or  on  a  vessel  in  neutral  waters. 

Art.  5.  Belligerents  are  forbidden  to  use  neutral  ports  and  waters 
as  a  base  of  naval  operations  against  their  adversaries,  and  in  par- 
ticular to  erect  wireless  telegraphy  stations  or  any  apparatus  for 
the  purpose  of  communicating  with  the  beUigerent  forces  on  land  or 
sea. 

Art.  6.  The  supply,  in  any  manner,  directly  or  indirectly,  by  a 
neutral  Power  to  a  belligerent  Power,  of  war-ships,  ammunition,  or 
war  material  of  any  kind  whatever,  is  forbidden. 

Art.  7.  A  neutral  Power  is  not  bound  to  prevent  the  export  or 
transit,  for  the  use  of  either  beUigerent,  of  arms,  ammunitions,  or,  in 
general,  of  anything  which  could  be  of  use  to  an  army  or  fleet. 

Art.  8.  A  neutral  Government  is  bound  to  employ  the  means  at 
its  disposal  to  prevent  the  fitting  out  or  arming  of  any  vessel  within 
its  jurisdiction  which  it  has  reason  to  believe  is  intended  to  cruise,  or 
engage  in  hostile  operations,  against  a  Power  with  which  that  Govern- 
ment is  at  peace.  It  is  also  bound  to  display  the  same  vigilance  to 
prevent  the  departure  from  its  jurisdiction  of  any  vessel  intended  to 
cruise,  or  engage  in  hostile  operations,  which  had  been  adapted  entirely 
or  partly  within  the  said  jurisdiction  for  use  in  war. 

Art.  9.  A  neutral  Power  must  apply  impartially  to  the  two 
belligerents  the  conditions,  restrictions,  or  prohibitions  made  by  it  in 


446  APPENDIX  XI 

regard  to  the  admission  into  its  ports,  roadsteads,  or  territorial  waters; 
of  belligerent  war-ships  or  of  their  prizes. 

Nevertheless,  a  neutral  Power  may  forbid  a  belligerent  vessel  which 
has  failed  to  conform  to  the  orders  and  regulations  made  by  it,  or 
which  has  violated  neutrality,  to  enter  its  ports  or  roadsteads. 

Art.  10.  The  neutrality  of  a  Power  is  not  affected  by  the  mere 
passage  through  its  territorial  waters  of  war-ships  or  prizes  belonging 
to  belligerents. 

Art.  11.  A  neutral  Power  may  allow  belUgerent  war-ships  to  em- 
ploy its  licensed  pilots. 

Art.  12.  In  the  absence  of  special  provisions  to  the  contrary  in  the 
legislation  of  a  neutral  Power,  belligerent  war-ships  are  not  permitted 
to  remain  in  the  ports,  roadsteads,  or  territorial  waters  of  the  said 
Power  for  more  than  twenty-four  hours,  except  in  the  cases  covered  by 
the  present  Convention. 

Art.  13.  If  a  Power  which  has  been  informed  of  the  outbreak  of 
hostiUties  learns  that  a  belUgerent  war-ship  is  in  one  of  its  ports  or 
roadsteads,  or  in  its  territorial  waters,  it  must  notify  the  said  ship  to 
depart  within  twenty-four  hours  or  within  the  time  prescribed  by 
local  regulations. 

Art.  14.  A  belligerent  war-ship  may  not  prolong  its  stay  in  a  neu- 
tral port  beyond  the  permissible  time  except  on  account  of  damage 
or  stress  of  weather.  It  must  depart  as  soon  as  the  cause  of  the  delay 
is  at  an  end. 

The  regulations  as  to  the  question  of  the  length  of  time  which  these 
vessels  may  remain  in  neutral  ports,  roadsteads,  or  waters,  do  not  ap- 
ply to  war-ships  devoted  exclusively  to  reUgious,  scientific,  or  philan- 
thropic purposes. 

Art.  15.  In  the  absence  of  special  provisions  to  the  contrary  in  the 
legislation  of  a  neutral  Power,  the  maximum  number  of  war-ships 
belonging  to  a  belligerent  which  may  be  in  one  of  the  ports  or  road- 
steads of  that  Power  simultaneously  shall  be  three. 

Art.  16.  When  war-ships  belonging  to  both  belligerents  are  pres- 
ent simultaneously  in  a  neutral  port  or  roadstead,  a  period  of  not 
less  than  twenty-four  hours  must  elapse  between  the  departure  of  the 
ship  belonging  to  one  belligerent  and  the  departure  of  the  ship  belong- 
ing to  the  other. 

The  order  of  departure  is  determined  by  the  order  of  arrival,  unless 
the  ship  which  arrived  first  is  so  circumstanced  that  an  extension  of  its 
stay  is  permissible. 


APPENDIX  XI  447 

A  belligerent  war-ship  may  not  leave  a  neutral  port  or  roadstead 
until  twenty-four  hours  after  the  departure  of  a  merchant-ship  flying 
the  flag  of  its  adversary. 

Art.  17.  In  neutral  ports  and  roadsteads  belligerent  war-ships 
may  only  carry  out  such  repairs  as  are  absolutely  necessary  to  render 
them  seaworthy,  and  may  not  add  in  any  manner  whatsoever  to  their 
fighting  force.  The  local  authorities  of  the  neutral  Power  shall  decide 
what  repairs  are  necessary,  and  these  must  be  carried  out  with  the 
least  possible  delay. 

Art.  18.  Belligerent  war-ships  may  not  make  use  of  neutral  ports, 
roadsteads,  or  territorial  waters  for  replenishing  or  increasing  their 
supplies  of  war  material  or  their  armament,  or  for  completing  their 
crews. 

Art.  19.  Belligerent  war-ships  may  only  revictual  in  neutral  ports 
or  roadsteads  to  bring  up  their  supplies  to  the  peace  standard. 

Similarly  these  vessels  may  only  ship  sufficient  fuel  to  enable  them 
to  reach  the  nearest  port  in  their  own  country.  They  may,  on  the 
other  hand,  fill  up  their  bunkers  built  to  carry  fuel,  when  in  neutral 
countries  which  have  adopted  this  method  of  determining  the  amount 
of  fuel  to  be  supplied. 

If,  in  accordance  with  the  law  of  the  neutral  Power,  the  ships  are 
not  suppUed  with  coal  within  twenty-four  hours  of  their  arrival, 
the  permissible  duration  of  their  stay  is  extended  by  twenty-four 
hours. 

Art.  20.  Belligerent  war-ships  which  have  shipped  fuel  in  a  port 
belonging  to  a  neutral  Power  may  not  within  the  succeeding  three 
months  replenish  their  supply  in  a  port  of  the  same  Power. 

Art.  21.  A  prize  may  only  be  brought  into  a  neutral  port  on  ac- 
count of  unseaworthiness,  stress  of  weather,  or  want  of  fuel  or  pro- 
visions. 

It  must  leave  as  soon  as  the  circumstances  which  justified  its  entry 
are  at  an  end.  If  it  does  not,  the  neutral  Power  must  order  it  to  leave 
at  once;  should  it  fail  to  obey,  the  neutral  Power  must  employ  the 
means  at  its  disposal  to  release  it  with  its  officers  and  crew  and  to  in- 
tern the  prize  crew. 

Art.  22.  A  neutral  Power  must,  similarly,  release  a  prize  brought 
into  one  of  its  ports  under  circumstances  other  than  those  referred  to 
in  Article  21. 

Art.  23.  A  neutral  Power  may  allow  prizes  to  enter  its  ports  and 
roadsteads,  whether  or  not  under  convoy,  when  they  are  brought  there 


448  APPENDIX  XI 

to  be  sequestrated  pending  the  decision  of  a  Prize  Court.  It  may 
have  the  prize  taken  to  another  of  its  ports. 

If  the  prize  is  convoyed  by  a  war-ship,  the  prize  crew  may  go  on 
board  the  convoying  ship. 

If  the  prize  is  not  under  convoy,  the  prize  crew  are  left  at  Uberty. 

Art.  24.  If,  notwithstanding  the  notification  of  the  neutral  Power, 
a  belligerent  ship  of  war  does  not  leave  a  port  where  it  is  not  entitled 
to  remain,  the  neutral  Power  is  entitled  to  take  such  measures  as  it 
considers  necessary  to  render  the  ship  incapable  of  taking  the  sea  dur- 
ing the  war,  and  the  commanding  officer  of  the  ship  must  facilitate  the 
execution  of  such  measures. 

When  a  belligerent  ship  is  detained  by  a  neutral  Power,  the  officers 
and  crew  are  likewise  detained. 

The  officers  and  crew  thus  detained  may  be  left  in  the  ship  or  kept 
either  on  another  vessel  or  on  land,  and  may  be  subjected  to  the  meas- 
ures of  restriction  which  it  may  appear  necessary  to  impose  upon 
them.  A  sufficient  number  of  men  for  looking  after  the  vessel  must, 
however,  be  always  left  on  board. 

The  officers  may  be  left  at  liberty  on  giving  their  word  not  to  quit 
the  neutral  territory  without  permission. 

Art.  25.  A  neutral  Power  is  bound  to  exercise  such  surveillance 
as  the  means  at  its  disposal  allow  to  prevent  any  violation  of  the  pro- 
visions of  the  above  Articles  occurring  in  its  ports  or  roadsteads  or  in 
its  waters. 

Art.  26.  The  exercise  by  a  neutral  Power  of  the  rights  laid  down  in 
the  present  Convention  can  under  no  circumstances  be  considered  as 
an  unfriendly  act  by  one  or  other  belligerent  who  has  accepted  the 
Article  relating  thereto. 

Art.  27.  The  Contracting  Powers  shall  communicate  to  each  other 
in  due  course  all  laws,  ordinances,  and  other  enactments  regulating 
in  their  respective  countries  the  status  of  belligerent  war-ships  in  their 
ports  and  waters,  by  means  of  a  communication  addressed  to  the 
Government  of  the  Netherlands  and  forwarded  immediately  by  that 
Government  to  the  other  Contracting  Powers. 

Art.  28.  The  provisions  of  the  present  Convention  do  not  apply 
except  to  the  Contracting  Powers,  and  then  only  if  all  the  belUgerents 
are  parties  to  the  Convention. 

[Articles  providing  for  ratification  follow.] 


APPENDIX  XI  449 

[Reservation  by  the  United  States.] 

Resolved  (two-thirds  of  the  Senators  present  concurring  therein),  That 
the  Senate  advise  and  consent  to  the  adherence  of  the  United  States 
to  a  convention  adopted  by  the  Second  International  Peace  Confer- 
ence held  at  The  Hague  from  June  15  to  October  18,  1907,  concerning 
the  rights  and  duties  of  neutral  powers  in  naval  war,  reserving  and 
excluding,  however,  Article  23  thereof,  which  is  in  the  following  words : 

A  neutral  power  may  allow  prizes  to  enter  its  ports  and  roadsteads 
whether  or  not  under  convoy,  when  they  are  brought  there  to  be  seques- 
trated pending  the  decision  of  a  prize  court.     It  may  have  the  prize  taken 
to  another  of  its  ports. 

If  the  prize  is  convoyed  by  a  war-ship,  the  prize  crew  may  go  on  board 
the  convoying  ship. 

If  the  prize  is  not  under  convoy,  the  prize  crew  are  left  at  Uberty. 

Resolved,  further.  That  the  United  States  adheres  to  this  convention 
with  the  understanding  that  the  last  clause  of  Article  3  imphes  the 
duty  of  a  neutral  power  to  make  the  demand  therein  mentioned  for 
the  return  of  a  ship  captured  within  the  neutral  jurisdiction  and  no 
longer  within  that  jurisdiction. 


APPENDIX  XII 

DECLARATION   OF   LONDON 

[Translation.] 

DECLARATION  CONCERNING  THE  LAWS  OF  NAVAL  WAR 

His  Majesty  the  German  Emperor,  King  of  Prussia;  the  President 
of  the  United  States  of  America;  His  Majesty  the  Emperor  of  Austria, 
King  of  Bohemia,  &c.,  and  ApostoUc  King  of  Hungary;  His  Majesty 
the  King  of  Spain ;  the  President  of  the  French  RepubUc ;  His  Majesty 
the  King  of  the  United  Kingdom  of  Great  Britain  and  Ireland  and  of 
the  British  Dominion  beyond  the  Seas,  Emperor  of  India;  His  Maj- 
esty the  King  of  Italy;  His  Majesty  the  Emperor  of  Japan;  Her  Maj- 
esty the  Queen  of  the  Netherlands ;  His  Majesty  the  Emperor  of  All 
the  Russias; 

Considering  the  invitation  which  the  British  Government  has  given 
to  various  Powers  to  meet  in  conference  in  order  to  determine  to- 
gether as  to  what  are  the  generally  recognized  rules  of  international 
law  within  the  meaning  of  Article  7  of  the  Convention  of  18th 
October,  1907,  relative  to  the  establishment  of  an  International  Prize 
Court ; 

Recognizing  all  the  advantages  which,  in  the  unfortunate  event  of 
a  naval  war  an  agreement  as  to  said  rules  would  present,  both  as  re- 
gards peaceful  commerce,  and  as  regards  the  belligerents  and  their 
diplomatic  relations  with  neutral  Governments; 

Considering  that  the  general  principles  of  international  law  are 
often  in  their  practical  application  the  subject  of  divergent  pro- 
cedure ; 

Animated  by  the  desire  to  insure  henceforward  a  greater  measure 
of  uniformity  in  this  respect ; 

Hoping  that  a  work  so  important  to  the  common  welfare  will  meet 
with  general  approval; 

450 


APPENDIX  XII  451 

Have  appointed  as  their  Plenipotentiaries,  that  is  to  say: 
[Names  of  Plenipotentiaries.] 

Who,  after  having  communicated  their  full  powers,  found  in  good 
and  due  form,  have  agreed  to  make  the  present  Declaration: 

PRELIMINARY   PROVISION 

The  Signatory  Powers  are  agreed  that  the  rules  contained  in  the 
following  chapters  correspond  in  substance  with  the  generally  recog- 
nized principles  of  international  law. 

Chapter  I.    Blockade  in  Time  of  War 

Article  1.  A  blockade  must  be  limited  to  the  ports  and  coasts 
belonging  to,  or  occupied  by,  the  enemy. 

Art.  2.  In  accordance  with  the  Declaration  of  Paris,  1856,  a 
blockade,  in  order  to  be  binding,  must  be  effective — that  is  to  say,  it 
must  be  maintained  by  a  force  sufficient  really  to  prevent  access  to 
the  enemy  coast. 

Art.  3.  The  question  whether  a  blockade  is  eflfective  is  a  cjuestion 
of  fact. 

Art.  4.  A  blockade  is  not  regarded  as  raised  if  by  bad  weather 
the  blockading  forces  are  temporarily  driven  off. 

Art.  5.  A  blockade  must  be  applied  impartially  to  the  ships  of  all 
nations. 

Art.  6.  The  commander  of  a  blockading  force  may  grant  to  a 
war-ship  permission  to  enter,  and  subsequently  to  leave,  a  blockaded 
port. 

Art.  7.  In  circumstances  of  distress,  acknowledged  by  an  author- 
ity of  the  blockading  forces,  a  neutral  vessel  may  enter  a  place  under 
blockade,  and  subsequently  leave  it,  provided  that  she  has  neither 
discharged  nor  shipped  any  cargo. 

Art.  8.  A  blockade,  in  order  to  be  binding  must  be  declared  in 
accordance  with  Article  9,  and  notified  in  accordance  with  Articles 
11  and  16. 

Art.  9.  A  declaration  of  blockade  is  made  either  by  the  blockad- 
ing Power  or  by  the  naval  authorities  acting  in  its  name. 

It  specifies — 

(1)  The  date  when  the  blockade  begins. 

(2)  The  geographical  limits  of  the  coast  blockaded. 

(3)  The  delay  to  be  allowed  to  neutral  vessels  for  departure. 


452  APPENDIX  XII 

Art.  10.  If  the  blockading  Power,  or  the  naval  authorities  act- 
ing in  its  name,  do  not  establish  the  blockade  in  conformity  with  the 
provisions,  which,  in  accordance  with  Article  9  (1)  and  (2),  must 
be  inserted  in  the  declaration  of  blockade,  the  declaration  is  void, 
and  a  new  declaration  is  necessary  in  order  to  make  the  blockade 
operative. 

Art.  11.     A  declaration  of  blockade  is  notified — 

(1)  To  the  neutral  Powers,  by  the  blockading  Power  by  means  of  a 
communication  addressed  to  the  Governments  themselves,  or  to  their 
Representatives  accredited  to  it. 

(2)  To  the  local  authorities,  by  the  officer  commanding  the  block- 
ading force.  These  authorities  will,  on  their  part,  inform,  as  soon  as 
possible,  the  foreign  consuls  who  exercise  their  functions  in  the  port 
or  on  the  coast  blockaded. 

Art.  12.  The  rules  relative  to  the  declaration  and  to  the  notifica- 
tion of  blockade  are  applicable  in  the  case  in  which  the  blockade  may 
have  been  extended,  or  may  have  been  reestablished  after  having 
been  raised. 

Art.  13.  The  voluntary  raising  of  a  blockade,  as  also  any  limita- 
tion which  may  be  introduced,  must  be  notified  in  the  manner  pre- 
scribed by  Article  11. 

Art.  14.  The  liability  of  a  neutral  vessel  to  capture  for  breach  of 
blockade  is  contingent  on  her  knowledge,  actual  or  presumptive,  of 
the  blockade. 

Art.  15.  Failing  proof  to  the  contrary,  knowledge  of  the  blockade 
is  presumed  if  the  vessel  left  a  neutral  port  subsequently  to  the  notifi- 
cation of  the  blockade  made  in  sufficient  time  to  the  Power  to  whi«h 
such  port  belongs. 

Art.  16.  If  a  vessel  which  approaches  a  blockaded  port  does  not 
know,  or  cannot  be  presumed  to  know,  of  the  blockade,  the  notifi(?ation 
must  be  made  to  the  vessel  itself  by  an  officer  of  one  of  the  ships  of 
the  blockading  force.  This  notification  must  be  entered  in  the  ship's 
log  book,  with  entry  of  the  day  and  hour,  as  also  of  the  geographical 
position  of  the  vessel  at  the  time. 

A  neutral  vessel  which  leaves  a  blockaded  port  must  be  allowed 
to  pass  free,  if  through  the  negligence  of  the  officer  commanding  the 
blockading  force,  no  declaration  of  blockade  has  been  notified  to  the 
local  authorities,  or,  if  in  the  declaration,  as  notified,  no  delay  has 
been  indicated. 

Art.  17.     The  seizure  of  neutral  vessels  for  violation  of  blockade 


APPENDIX  XII  453 

may  be  made  only  within  the  radius  of  action  of  the  ships  of  war  as- 
signed to  maintain  an  effective  blockade. 

Art.  18.  The  blockading  forces  must  not  bar  access  to  the  ports 
or  to  the  coasts  of  neutrals. 

Art.  19.  Whatever  may  be  the  ulterior  destination  of  the  ship  or 
of  her  cargo,  the  evidence  of  violation  of  blockade  is  not  sufficiently 
conclusive  to  authorize  the  seizure  of  the  ship  if  she  is  at  the  time 
bound  toward  an  unblockaded  port. 

Art.  20.  A  vessel  which  in  violation  of  blockade  has  left  a  block- 
aded port  or  has  attempted  to  enter  the  port  is  liable  to  caj^ture  so 
long  as  she  is  pursued  by  a  ship  of  the  blockading  force.  If  the  pur- 
suit is  abandoned,  or  if  the  blockade  is  raised,  her  capture  can  no 
longer  be  effected. 

Art.  21.  A  vessel  found  guilty  of  breach  of  blockade  is  liable  to 
condemnation.  The  cargo  is  also  liable  to  condemnation,  unless  it  is 
proved  that  at  the  time  the  goods  were  shipped  the  shipper  neither 
knew  nor  could  have  known  of  the  intention  to  violate  the  blockade. 

Chapter  II.     Contraband  of  War 

Art.  22.    The  following  articles  and  materials  are,  without  notice,   \ 
regarded  as  contraband,  under  the  name  of  absolute  contraband: 

1.  Arms  of  all  kinds,  including  arms  for  sporting  purposes,  and 
their  unassembled  distinctive  parts. 

2.  Projectiles,  charges,  and  cartridges  of  all  kinds,  and  their  unas- 
sembled distinctive  parts. 

3.  Powder  and  explosives  specially  adapted  for  use  in  war. 

4.  Gun  carriages,  caissons,  limbers,  military  wagons,  field  forges, 
and  their  unassembled  distinctive  parts. 

5.  Clothing  and  equipment  of  a  distinctively  military  character. 

6.  All  kinds  of  harness  of  a  distinctively  military  character. 

7.  Saddle,  draught,  and  pack  animals  suitable  for  use  in  war. 

8.  Articles  of  camp  equipment  and  their  unassembled  distinctive 
parts. 

9.  Armor  plates. 

10.  War-ships  and  boats  and  their  unassembled  parts  specially  dis- 
tinctive as  only  suitable  for  use  in  a  vessel  of  war. 

11.  Implements  and  apparatus  made  exclusively  for  the  manufac- 
ture of  munitions  of  war,  for  the  manufacture  or  repair  of  arms  or  of 
military  material,  for  use  on  land  and  sea. 


454  APPENDIX  XII 

Art.  23.  Articles  and  materials  which  are  exclusively  used  for 
war  may  be  added  to  the  list  of  absolute  contraband  by  means  of  a 
notified  declaration. 

The  notification  is  addressed  to  the  Governments  of  other  Powers 
or  to  their  Representatives  accredited  to  the  Power  which  makes  the 
declaration.  A  notification  made  after  the  opening  of  hostilities  is 
addressed  only  to  the  neutral  Powers. 

Art.  24.  The  following  articles  and  materials,  susceptible  of  use  in 
war  as  well  as  for  purposes  of  peace,  are  without  notice  regarded  as 
contraband  of  war,  under  the  name  of  conditional  contraband : 

(1)  Food. 

(2)  Forage  and  grain  suitable  for  feeding  animals. 

(3)  Clothing  and  fabrics  for  clothing,  boots  and  shoes,  suitable  for 
military  use. 

(4)  Gold  and  silver  in  coin  or  bullion ;  paper  money. 

(5)  Vehicles  of  all  kinds  available  for  use  in  war,  and  their  imas- 
sembled  parts. 

(6)  Vessels,  craft,  and  boats  of  all  kinds,  floating  docks,  parts  of 
docks  as  also  their  unassembled  parts. 

(7)  Fixed  railway  material  and  rolling  stock,  and  material  for  tele- 
graphs, radiotelegraphs  and  telephones. 

(8)  Balloons  and  flying  machines  and  their  unassembled  distinctive 
parts  as  also  their  accessories,  articles  and  materials  distinctive  as 
intended  for  use  in  connection  with  balloons  or  flying  machines. 

(9)  Fuel;  lubricants. 

(10)  Powder  and  explosives  wliich  are  not  specially  adapted  for  use 
in  war. 

(11)  Barbed  wire  as  also  the  implements  for  placing  and  cutting 
the  same.  s. 

(12)  Horseshoes  and  horseshoeing  materials. 

(13)  Harness  and  saddlery  material. 

(14)  Binocular  glasses,  telescopes,  chronometers,  and  all  kinds  of 
nautical  instruments. 

Art.  25.  Articles  and  materials  susceptible  of  use  in  war  as  well 
as  for  purposes  of  peace,  and  other  than  those  enumerated  in  Articles 
22  and  24,  may  be  added  to  the  list  of  conditional  contraband  by 
moans  of  a  declaration  which  must  be  notified  in  the  manner  provided 
for  in  the  second  paragraph  of  Article  23. 

Art.  26.  If  a  Power  waives,  so  far  as  it  is  concerned,  the  right  to  re- 
gard as  contraband  of  war  articles  and  materials  which  are  comprised 


APPENDIX  XII  455 

in  any  of  the  classes  enumerated  in  Articles  22  and  24,  it  shall  make 
known  its  intention  by  a  declaration  notified  in  the  manner  provided 
for  in  the  second  paragraph  of  Article  23. 

Art,  27.  Articles  and  materials,  which  are  not  susceptible  of  use 
in  war,  are  not  to  be  declared  contraband  of  war. 

Art.  28.  The  following  articles  are  not  to  be  declared  contraband 
of  war: 

(1)  Raw  cotton,  wool,  silk,  jute,  flax,  hemp,  and  other  raw  materials 
of  the  textile  industries,  and  also  yarns  of  the  same. 

(2)  Nuts  and  oil  seeds;  copra. 

(3)  Rubber,  resins,  gums  and  lacs ;  hops. 

(4)  Raw  hides,  horns,  bones  and  ivory. 

(5)  Natural  and  artificial  manures,  including  nitrates  and  phos- 
phates for  agricultural  purposes. 

(6)  Metallic  ores. 

(7)  Earths,  clays,  lime,  chalk,  stone,  including  marble,  bricks,  slates 
and  tiles. 

(8)  Chinaware  and  glass. 

(9)  Paper  and  materials  prepared  for  its  manufacture. 

(10)  Soap,  paint  and  colors,  including  articles  exclusively  used  in 
their  manufacture,  and  varnishes. 

(11)  Bleaching  powder,  soda  ash,  caustic  soda,  salt  cake,  ammonia; 
sulphate  of  ammonia,  and  sulphate  of  copper. 

(12)  Agricultural,  mining,  textile,  and  printing  machinery. 

(13)  Precious  stones,  semi-precious  stones,  pearls,  mother-of-pearl, 
and  coral. 

(14)  Clocks  and  watches,  other  than  chronometers. 

(15)  Fashion  and  fancy  goods. 

(16)  Feathers  of  all  kinds,  hairs,  and  bristles. 

(17)  Articles  of  household  furniture  and  decorations;  office  furniture 
and  accessories. 

Art.  29.  Neither  are  the  following  to  be  regarded  as  contraband 
of  war: 

(1)  Articles  and  materials  serving  exclusively  for  the  care  of  the  sick 
and  wounded.  They  may,  nevertheless,  in  case  of  urgent  miUtary 
necessity  and,  subject  to  the  payment  of  compensation,  be  requisitioned, 
if  their  destination  is  that  specified  in  Article  30. 

(2)  Articles  and  materials  intended  for  the  use  of  the  vessel  in  which 
they  are  found,  as  well  as  those  for  the  use  of  her  crew  and  passengers 
during  the  voyage. 


456  APPENDIX  XII 

Art.  30.  Absolute  contraband  is  liable  to  capture  if  it  is  shown  to 
be  destined  to  territory  belonging  to  or  occupied  by  the  enemy,  or  to 
the  armed  forces  of  the  enemy.  It  is  immaterial  whether  the  carriage  of 
the  goods  is  direct  or  entails  either  transhipment  or  transport  over 

land. 

Art.  31.  Proof  of  the  destination  specified  in  Article  30  is  com- 
plete in  the  following  cases : 

(1)  When  the  goods  are  documented  to  be  discharged  in  a  port  of 
the  enemy,  or  to  be  delivered  to  his  armed  forces. 

(2)  When  the  vessel  is  to  call  at  enemy  ports  only,  or  when  she  is  to 
touch  at  a  port  of  the  enemy  or  to  join  his  armed  forces,  before  arriv- 
ing at  the  neutral  port  for  which  the  goods  are  documented. 

Art.  32.  The  ship's  papers  are  complete  proof  of  the  voyage  of  a 
vessel  transporting  absolute  contraband,  unless  the  vessel  is  encoun- 
tered having  manifestly  deviated  from  the  route  which  she  ought  to 
follow  according  to  the  ship's  papers  and  being  unable  to  justify  by 
sufficient  reason  such  deviation. 

Art.  33.  Conditional  contraband  is  Uable  to  capture  if  it  is  shown 
that  it  is  destined  for  the  use  of  the  armed  forces  or  of  a  government 
department  of  the  enemy  State,  unless  in  this  latter  case  the  circum- 
stances show  that  the  articles  cannot  in  fact  be  used  for  the  purposes 
of  the  war  in  progress.  This  latter  exception  does  not  apply  to  a 
consignment  coming  under  Article  24  (4). 

Art.  34.  There  is  presumption  of  the  destination  referred  to  in 
Article  33  if  the  consignment  is  addressed  to  enemy  authorities,  or  to 
a  merchant,  established  in  the  enemy  country,  and  when  it  is  well 
known  that  this  merchant  supplies  articles  and  material  of  this  kind 
to  the  enemy.  The  presumption  is  the  same  if  the  consignment  is 
destined  to  a  fortified  place  of  the  enemy,  or  to  another  place  serving 
as  a  base  for  the  armed  forces  of  the  enemy ;  this  presumption^  how- 
ever, does  not  apply  to  the  merchant-vessel  herself  bound  for  one  of 
these  places  and  of  which  vessel  it  is  sought  to  show  the  contraband 
character. 

Failing  the  above  presumptions,  the  destination  is  presumed  innocent. 

The  presumptions  laid  down  in  this  Article  admit  proof  to  the  con- 
trary. 

Art.  35.  Conditional  contraband  is  not  liable  to  capture,  except 
when  on  board  a  vessel  bound  for  territory  belonging  to  or  occupied 
by  the  enemy,  or  for  the  armed  forces  of  the  enemy,  and  when  it  is 
not  to  be  discharged  at  an  intervening  neutral  port. 


APPENDIX  XII  457 

The  ship's  papers  are  conclusive  proof  both  of  the  voyage  of  the 
vessel  as  also  of  the  port  of  discharge  of  the  goods,  unless  the  vessel 
is  encountered  having  manifestly  deviated  from  the  route  which  she 
ought  to  follow  according  to  the  ship's  papers  and  being  unable  to 
justify  by  sufficient  reason  such  deviation. 

Art.  36.  Notwithstanding  the  provisions  of  Article  35,  if  the  terri- 
tory of  the  enemy  has  no  seaboard,  conditional  contraband  is  liable  to 
capture  if  it  is  shown  that  it  has  the  destination  referred  to  in  Ar- 
ticle 33. 

Art.  37.  A  vessel  carrying  articles  liable  to  capture  as  absolute  or 
conditional  contraband  may  be  captured  on  the  high  seas  or  in  the  ter- 
ritorial waters  of  the  belligerents  throughout  the  whole  course  of  her 
voyage,  even  if  she  has  the  intention  to  touch  at  a  port  of  call  before 
reaching  the  hostile  destination. 

Art.  38.  A  capture  is  not  to  be  made  on  the  ground  of  a  carriage 
of  contraband  previously  accompUshed  and  at  the  time  completed. 

Art.  39.     Contraband  is  liable  to  condemnation. 

Art.  40.  The  confiscation  of  the  vessel  carrying  contraband  is  al- 
lowed if  the  contraband  forms,  either  by  value,  by  weight,  by  volume, 
or  by  freight,  more  than  half  the  cargo. 

Art.  41.  If  a  vessel  carrying  contraband  is  released,  the  expenses 
incurred  by  the  captor  in  the  trial  before  the  national  prize  court  as  also 
for  the  preservation  and  custody  of  the  ship  and  cargo  during  the  pro- 
ceedings are  chargeable  against  the  ship. 

Art.  42.  Goods  which  belong  to  the  owner  of  the  contraband  and 
which  are  on  board  the  same  vessel  are  liable  to  condemnation. 

Art.  43.  If  a  vessel  is  encountered  at  sea  making  a  voyage  in 
ignorance  of  the  hostilities  or  of  the  declaration  of  contraband  affect- 
ing her  cargo,  the  contraband  is  not  to  be  condemned  except  with  in- 
demnity ;  the  vessel  herself  and  the  remainder  of  the  cargo  are  exempt 
from  condemnation  and  from  the  expenses  referred  to  in  Article  41. 
The  case  is  the  same  if  the  master  after  becoming  aware  of  the  open- 
ing of  hostilities,  or  of  the  declaration  of  contraband,  has  not  yet  been 
able  to  discharge  the  contraband. 

A  vessel  is  deemed  to  be  aware  of  the  state  of  war,  or  of  the  declara- 
tion of  contraband,  if  she  left  a  neutral  port  after  there  had  been  made 
in  sufficient  time  the  notification  of  the  opening  of  hostilities,  or  of 
the  declaration  of  contraband,  to  the  power  to  which  such  port  belongs. 
A  vessel  is  also  deemed  to  be  aware  of  a  state  of  war  if  she  left  an  en- 
emy port  after  the  opening  of  hostilities. 


458  APPENDIX  XII 

Art.  44.  A  vessel  stopped  because  carrying  contraband,  and  not 
liable  to  condemnation  on  account  of  the  proportion  of  contraband, 
may,  according  to  circumstances,  be  allowed  to  continue  her  voyage 
if  the  master  is  ready  to  deliver  the  contraband  to  the  beUigerent  ship. 

The  delivery  of  the  contraband  is  to  be  entered  by  the  captor  on 
the  log  book  of  the  vessel  stopped  and  the  master  of  the  vessel  must 
furnish  the  captor  duly  certified  copies  of  all  relevant  papers. 

The  captor  is  at  liberty  to  destroy  the  contraband  which  is  thus 
delivered  to  him. 

Chapter  III.     Unneutral  Service 

Art.  45.  A  neutral  vessel  is  liable  to  be  condemned  and,  in  a  gen- 
eral way,  is  liable  to  the  same  treatment  which  a  neutral  vessel  would 
undergo  when  hable  to  condemnation  on  account  of  contraband  of  war: 

(1)  If  she  is  making  a  voyage  specially  with  a  view  to  the  transport 
of  individual  passengers  who  are  embodied  in  the  armed  force  of  the 
enemy,  or  with  a  view  to  the  transmission  of  information  in  the  in- 
terest of  the  enemy. 

(2)  If,  with  the  knowledge  of  the  owner,  of  the  one  who  charters 
the  vessel  entire,  or  of  the  master,  she  is  transporting  a  military  de- 
tachment of  the  enemy,  or  one  or  more  persons  who,  during  the  voy- 
age, lend  direct  assistance  to  the  operations  of  the  enemy. 

In  the  cases  specified  in  the  preceding  paragraphs  (1)  and  (2),  goods 
belonging  to  the  owner  of  the  vessel  are  Ukewise  Uable  to  condemna- 
tion. 

The  provisions  of  the  present  Article  do  not  apply  if  when  the  vessel 
is  encountered  at  sea  she  is  unaware  of  the  opening  of  hostilities,  or  if 
the  master,  after  becoming  aware  of  the  opening  of  hostilities,  has  not 
been  able  to  disembark  the  passengers.  The  vessel  is  deemed  toTcnow 
of  the  state  of  war  if  she  left  an  enemy  port  after  the  opening  of  hos- 
tilities, or  a  neutral  port  after  there  had  been  made  in  sufficient  time 
a  notification  of  the  opening  of  hostilities  to  the  Power  to  which  such 
port  belongs. 

Art.  46.  A  neutral  vessel  is  liable  to  be  condemned  and,  in  a  gen- 
eral way,  is  liable  to  the  same  treatment  which  she  would  undergo  if 
she  were  a  merchant- vessel  of  the  enemy: — 

(1)  If  she  takes  a  direct  part  in  the  hostilities. 

(2)  If  she  is  under  the  orders  or  under  the  control  of  an  agent  placed 
on  board  by  the  enemy  Government. 


APPENDIX  XII  459 

(3)  If  she  is  chartered  entire  by  the  enemy  Government. 

(4)  If  she  is  at  the  time  and  exclusively  either  devoted  to  the  trans- 
port of  enemy  troops  or  to  the  transmission  of  information  in  the  in- 
terest of  the  enemy. 

In  the  cases  specified  in  the  present  Article,  the  goods  belonging  to 
the  owner  of  the  vessel  are  likewise  liable  to  condemnation. 

Art.  47.  Any  individual  embodied  in  the  armed  force  of  the  enemy 
and  who  is  found  on  board  a  neutral  merchant- vessel,  may  be  made 
a  prisoner  of  war,  even  though  there  be  no  ground  for  the  capture  of  the 
vessel. 

Chapter  IV.     Destruction  of  Neutral  Prizes 

Art.  48.  A  captured  neutral  vessel  is  not  to  be  destroyed  by  the 
captor,  but  must  be  taken  into  such  port  as  is  proper  in  order  to  de- 
termine there  the  rights  as  regards  the  validity  of  the  capture. 

Art.  49.  As  an  exception,  a  neutral  vessel  captured  by  a  belliger- 
ent ship,  and  which  would  be  liable  to  condemnation,  may  be  de- 
stroyed if  the  observance  of  Article  48  would  involve  danger  to  the 
ship  of  war  or  to  the  success  of  the  operations  in  which  she  is  at  the 
time  engaged. 

Art.  50.  Before  the  destruction  the  persons  on  board  must  be 
placed  in  safety,  and  all  the  ship's  papers  and  other  documents  which 
those  interested  consider  relevant  for  the  decision  as  to  the  validity 
of  the  capture  must  be  taken  on  board  the  ship  of  war. 

Art.  51.  A  captor  who  has  destroyed  a  neutral  vessel  must,  as  a 
condition  precedent  to  any  decision  upon  the  validity  of  the  capture, 
establish  in  fact  that  he  only  acted  in  the  face  of  an  exceptional  neces- 
sity such  as  is  contemplated  in  Article  49.  Failing  to  do  this,  he  must 
compensate  the  parties  interested  without  examination  as  to  whether 
or  not  the  capture  was  valid. 

Art.  52.  If  the  capture  of  a  neutral  vessel,  of  which  the  destruction 
has  been  justified,  is  subsequently  held  to  be  invalid,  the  captor  must 
compensate  those  interested,  in  place  of  the  restitution  to  which  they 
would  have  been  entitled. 

Art.  53.  If  neutral  goods  which  were  not  liable  to  condemnation 
have  been  destroyed  with  the  vessel,  the  owner  of  such  goods  is  en- 
titled to  compensation. 

Art.  54.  The  captor  has  the  right  to  require  the  giving  up  of,  or 
to  proceed  to  destroy,  goods  hable  to  condemnation  found  on  board  a 
vessel  which  herself  is  not  liable  to  condemnation,  provided  that  the 


460  APPENDIX  XII 

circumstances  are  such  as,  according  to  Article  49,  justify  the  de- 
struction of  a  vessel  liable  to  condemnation.  The  captor  enters  the 
goods  delivered  or  destroyed  in  the  log  book  of  the  vessel  stopped,  and 
must  procure  from  the  master  duly  certified  copies  of  all  relevant 
papers.  When  the  giving  up  or  destruction  has  been  completed  and 
the  formalities  have  been  fulfilled,  the  master  must  be  allowed  to 
continue  his  voyage. 

The  provisions  of  Articles  51  and  52  respecting  the  obligations  of  a 
captor  who  has  destroyed  a  neutral  vessel  are  applicable. 

Chapter  V.     Transfer  of  Flag 

Art.  55.  The  transfer  of  an  enemy  vessel  to  a  neutral  flag,  effected 
before  the  opening  of  hostilities,  is  valid,  unless  it  is  proved  that  such 
transfer  was  made  in  order  to  evade  the  consequences  which  the 
enemy  character  of  the  vessel  would  involve.  There  is,  however,  a 
presumption  that  the  transfer  is  void  if  the  bill  of  sale  is  not  on 
board  in  case  the  vessel  has  lost  her  belligerent  nationality  less  than 
sixty  days  before  the  opening  of  hostilities.  Proof  to  the  contrary  is 
admitted. 

There  is  absolute  presumption  of  the  validity  of  a  transfer  effected 
more  than  thirty  days  before  the  opening  of  hostilities  if  it  is  absolute, 
complete,  conforms  to  the  laws  of  the  countries  concerned,  and  if  its 
effect  is  such  that  the  control  of  the  vessel  and  the  profits  of  her  em- 
ployment do  not  remain  in  the  same  hands  as  before  the  transfer. 
If,  however,  the  vessel  lost  her  belligerent  nationality  less  than  sixty 
days  before  the  opening  of  hostilities,  and  if  the  bill  of  sale  is  not 
on  board  the  capture  of  the  vessel  would  not  give  a  right  to  -com- 
pensation. 

Art.  56.  The  transfer  of  an  enemy  vessel  to  a  neutral  flag,  effected 
after  the  opening  of  hostilities,  is  void  unless  it  is  proved  that  such 
transfer  was  not  made  in  order  to  evade  the  consequences  which  the 
enemy  character  of  the  vessel  would  involve. 

There  is,  however,  absolute  presumption  that  a  transfer  is  void : 

(1)  If  the  transfer  has  been  made  during  a  voyage  or  in  a  blockaded 
port. 

(2)  If  there  is  a  right  of  redemption  or  of  revision. 

(3)  If  the  requirements  upon  which  the  right  to  fly  the  flag  depends, 
according  to  the  laws  of  the  country  of  the  flag  hoisted,  have  not  been 
observed. 


APPENDIX  XII  461 

Chapter  VI.     Enemy  Character 

Art.  57.  Subject  to  the  provisions  respecting  the  transfer  of  flag, 
the  neutral  or  enemy  character  of  a  vessel  is  determined  by  the  flag 
which  she  is  entitled  to  fly. 

The  case  in  which  a  neutral  vessel  is  engaged  in  a  trade  which  is 
reserved  in  time  of  peace,  remains  outside  the  scope  of,  and  is  in  no 
wise  affected  by  this  rule. 

Art.  58.  The  neutral  or  enemy  character  of  goods  found  on  board 
an  enemy  vessel  is  determined  by  the  neutral  or  enemy  character  of 
the  owner. 

Art.  59.  If  the  neutral  character  of  goods  found  on  board  an  en- 
emy vessel  is  not  proven,  they  are  presumed  to  be  enemy  goods. 

Art.  60.  The  enemy  character  of  goods  on  board  an  enemy  vessel 
continues  until  they  reach  their  destination,  notwithstanding  an  in- 
tervening transfer  after  the  opening  of  hostilities  while  the  goods  are 
being  forwarded. 

If,  however,  prior  to  the  capture  a  former  neutral  owner  exercises, 
on  the  bankruptcy  of  a  present  enemy  owner,  a  legal  right  to  recover 
the  goods,  they  regain  their  neutral  character. 

Chapter  VII.    Convoy 

Art.  61.  Neutral  vessels  under  convoy  of  their  national  flag  are 
exempt  from  search.  The  commander  of  a  convoy  gives,  in  writing, 
at  the  request  of  the  commander  of  a  belligerent  ship  of  war,  all  in- 
formation as  to  the  character  of  the  vessels  and  their  cargoes,  which 
could  be  obtained  by  visit  and  search. 

Art.  62.  If  the  commander  of  the  belligerent  ship  of  war  has  rea- 
son to  suspect  that  the  confidence  of  the  commander  of  the  convoy 
has  been  abused,  he  communicates  his  suspicions  to  him.  In  such 
a  case  it  is  for  the  commander  of  the  convoy  alone  to  conduct  an  in- 
vestigation. He  must  state  the  result  of  such  investigation  in  a  re- 
port, of  which  a  copy  is  furnished  to  the  officer  of  the  ship  of  war. 
If,  in  the  opinion  of  the  commander  of  the  convoy,  the  facts  thus 
stated  justify  the  capture  of  one  or  more  vessels,  the  protection  of  the 
convoy  must  be  withdrawn  from  such  vessels. 


462  APPENDIX  XII 

Chapter  VIII.    Resistance  to  Search 

Art.  63.  Forcible  resistance  to  the  legitimate  exercise  of  the  right 
of  stoppage,  visit  and  search,  and  capture,  involves  in  all  cases  the 
condemnation  of  the  vessel.  The  cargo  is  liable  to  the  same  treat- 
ment which  the  cargo  of  an  enemy  vessel  would  undergo.  Goods  be- 
longing to  the  master  or  owner  of  the  vessel  are  regarded  as  enemy- 
goods. 

Chapter  IX,    Compensation 

Art.  64.  If  the  capture  of  a  vessel  or  of  goods  is  not  upheld  by  the 
prize  court,  or  if  without  being  brought  to  judgment  the  captured 
vessel  is  released,  those  interested  have  the  right  to  compensation, 
unless  there  were  sufficient  reasons  for  capturing  the  vessel  or  goods. 

FINAL  PROVISIONS 

Art.  65.  The  provisions  of  the  present  Declaration  form  an  in- 
divisible whole. 

Art.  66.  The  Signatory  Powers  undertake  to  secure  the  reciprocal 
observance  of  the  rules  contained  in  this  Declaration  in  case  of  a  war 
in  which  the  belligerents  are  all  parties  to  this  Declaration.  They 
will  therefore  issue  the  necessary  instructions  to  their  authorities  and 
to  their  armed  forces,  and  will  take  the  measures  which  are  proper 
in  order  to  guarantee  the  application  of  the  Declaration  by  their 
Courts  and  more  particularly  by  their  prize  courts. 

Art.  67.  The  present  Declaration  shall  be  ratified  as  soon  as 
possible. 

The  ratifications  shall  be  deposited  in  London. 

The  first  deposit  of  ratifications  shall  be  recorded  in  a  Protocol 
signed  by  the  Representatives  of  the  Powers  taking  part  therein^  and 
by  His  Britannic  Majesty's  Principal  Secretary  of  State  for  Foreign 
Affairs. 

The  subsequent  deposits  of  ratifications  shall  be  made  by  means 
of  a  written  notification  addressed  to  the  British  Government,  and 
accompanied  by  the  instrument  of  ratification. 

A  duly  certified  copy  of  the  Protocol  relating  to  the  first  deposit  of 
ratifications,  and  of  the  notifications  mentioned  in  the  preceding  para- 
graph as  well  as  of  the  instruments  of  ratification  which  accompany 
them,  shall  be  immediately  sent  by  the  British  Government,  through 
the  diplomatic  channel,  to  the  Signatory  Powers.    The  said  Govern- 


APPENDIX  XII  463 

ment  shall,  in  the  cases  contemplated  in  the  preceding  paragraph, 
inform  them  at  the  same  time  of  the  date  on  which  it  received  the 
notification. 

Art.  68.  The  present  Declaration  shall  take  effect,  in  the  case  of 
the  Powers  which  were  parties  to  the  first  deposit  of  ratifications,  sixty 
days  after  the  date  of  the  Protocol  recording  such  deposit,  and,  in  the 
case  of  the  Powers  which  shall  ratify  subsequently,  sixty  days  after 
the  notification  of  their  ratification  shall  have  been  received  by  the 
British  Government. 

Art.  69.  If  it  happens  that  one  of  the  Signatory  Powers  wishes  to 
denounce  the  present  Declaration,  such  denunciation  can  only  be 
made  to  take  effect  at  the  end  of  a  period  of  twelve  years,  beginning 
sixty  days  after  the  first  deposit  of  ratifications,  and,  after  that  time, 
at  the  end  of  successive  periods  of  six  years,  of  which  the  first  will  be- 
gin at  the  end  of  the  period  of  twelve  years. 

Such  denunciation  must  be  notified  in  writing,  at  least  one  year  in 
advance,  to  the  British  Government,  which  shall  inform  all  the  other 
Powers. 

It  will  only  operate  in  respect  of  the  Power  which  shall  have  made 
the  notification. 

Art.  70.  The  Powers  represented  at  the  London  Naval  Confer- 
ence attach  particular  value  to  the  general  recognition  of  the  rules 
which  they  have  adopted,  and  express  the  hope  that  the  Powers  which 
were  not  represented  will  accede  to  the  present  Declaration,  They 
request  the  British  Government  to  invite  them  to  do  so, 

A  Power  which  desires  to  accede  notifies  its  intention  in  writing  to 
the  British  Government,  in  transmitting  the  act  of  accession,  which 
will  be  deposited  in  the  archives  of  the  said  Government. 

The  said  Government  shall  forthwith  transmit  to  all  the  other 
Powers  a  duly  certified  copy  of  the  notification,  as  also  of  the  act  of 
accession,  stating  the  date  on  which  it  received  the  notification.  The 
accession  takes  effect  sixty  days  after  such  date. 

The  position  of  the  acceding  Powers  shall  be  in  all  matters  concern- 
ing this  Declaration  similar  to  the  position  of  the  Signatory  Powers, 

Art.  71,  The  present  Declaration,  which  shall  bear  the  date  of  the 
26th  February,  1909,  may  be  signed  in  London  until  the  30th  June, 
1909,  by  the  Plenipotentiaries  of  the  Powers  represented  at  the  Naval 
Conference. 

In  faith  whereof  the  Plenipotentiaries  have  signed  the  present  Dec- 
laration, and  have  thereto  affixed  their  seals. 


464  APPENDIX  XII 

Done  at  London,  the  twenty-sixth  day  of  February,  one  thousand 
nine  hundred  and  nine,  in  a  single  original,  which  shall  remain  de- 
posited in  the  archives  of  the  British  Government,  and  of  which  duly 
certified  copies  shall  be  sent  through  the  diplomatic  channel  to  the 
Powers  represented  at  the  Naval  Conference. 


APPENDIX  XIII 

UNITED   STATES   NEUTRALITY  LAWS 

Sec.  5281.  Every  citizen  of  the  United  States,  who  within  the 
territory  or  jurisdiction  thereof,  accepts  and  exercises  a  commission  to 
serve  a  foreign  prince,  state,  colony,  district,  or  people,  in  war,  by  land 
or  by  sea,  against  any  prince,  state,  colony,  district,  or  people,  with 
whom  the  United  States  are  at  peace,  shall  be  deemed  guilty  of  a  high 
misdemeanor,  and  shall  be  fined  not  more  than  two  thousand  dollars, 
and  imprisoned  not  more  than  three  years. 

Sec.  5282.  Every  person,  who,  within  the  territory  or  jurisdiction 
of  the  United  States,  enlists  or  enters  himself,  or  hires  or  retains  another 
person  to  enlist  or  enter  himself,  or  to  go  beyond  the  limits  or  juris- 
diction of  the  United  States  with  intent  to  be  enlisted  or  entered  in  the 
service  of  any  foreign  prince,  state,  colony,  district,  or  people,  as  a 
soldier,  or  as  a  marine  or  seaman,  on  board  of  any  vessel  of  war,  letter 
of  marque,  or  privateer,  shall  be  deemed  guilty  of  high  misdemeanor, 
and  shall  be  fined  not  more  than  one  thousand  dollars,  and  imprisoned 
not  more  than  three  years. 

Sec.  5283.  Every  person;  who,  within  the  limits  of  the  United 
States,  fits  out  and  arras,  or  attempts  to  fit  out  and  arm,  or  procures 
to  be  fitted  out  and  armed,  or  knowingly  is  concerned  in  the  furnishing, 
fitting  out,  or  arming,  of  any  vessel,  with  intent  that  such  vessel  shall 
be  employed  in  the  service  of  any  foreign  prince  or  state,  or  of  any 
colony,  district,  or  people,  to  cruise  or  commit  hostilities  against  the 
subjects,  citizens,  or  property  of  any  foreign  prince  or  state,  or  of  any 
colony,  district,  or  people,  with  whom  the  United  States  are  at  peace, 
or  who  issues  or  delivers  a  commission  within  the  territory  or  juris- 
diction of  the  United  States,  for  any  vessel,  to  the  intent  that  she  may 
be  so  employed,  shall  be  deemed  guilty  of  a  high  misdemeanor,  and 
shall  be  fined  not  more  than  ten  thousand  dollars,  and  imprisoned  not 
more  thaij  three  years.     And  every  such  vessel,  her  tackle,  apparel,  and 

465 


466  APPENDIX  XIII 

furniture;  together  with  all  materials,  arms,  ammunition,  and  stores; 
which  may  have  been  procured  for  the  building  and  equipment  thereof, 
shall  be  forfeited;  one  half  to  the  use  of  the  informer,  and  the  other 
half  to  the  use  of  the  United  States. 

Sec.  5284.  Every  citizen  of  the  United  States  who,  without  the 
limits  thereof,  fits  out  and  arms,  or  attempts  to  fit  out  and  arm,  or 
procures  to  be  fitted  out  and  armed,  or  knowingly  aids  or  is  concerned 
in  furnishing,  fitting  out,  or  arming  any  private  vessel  of  war,  or 
privateer,  with  intent  that  such  vessel  shall  be  employed  to  cruise,  or 
commit  hostilities,  upon  the  citizens  of  the  United  States,  or  their 
property,  or  who  takes  the  command  of,  or  enters  on  board  of  any 
such  vessel,  for  such  intent,  or  who  purchases  any  interest  in  any  such 
vessel,  with  a  view  to  share  in  the  profits  thereof,  shall  be  deemed 
guilty  of  a  high  misdemeanor,  and  fined  not  more  than  ten  thousand 
dollars,  and  imprisoned  not  more  than  ten  years.  And  the  trial  for 
such  offense,  if  committed  without  the  limits  of  the  United  States, 
shall  be  in  the  district  in  which  the  offender  shall  be  apprehended  or 
first  brought. 

Sec.  5285.  Every  person  who,  within  the  territory  or  jurisdiction 
of  the  United  States,  increases  or  augments,  or  procures  to  be  in- 
creased or  augmented,  or  knowingly  is  concerned  in  increasing  or  aug- 
menting, the  force  of  any  ship  of  war,  cruiser,  or  other  armed  vessel, 
which,  at  the  time  of  her  arrival  within  the  United  States,  was  a 
ship  of  war  or  cruiser  or  armed  vessel,  in  the  service  of  any  foreign 
prince  or  state  or  of  any  colony,  district,  or  people,  or  belonging 
to  the  subjects  or  citizens  of  any  such  prince  or  state,  colony,  dis- 
trict, or  people,  the  same  being  at  war  with  any  foreign  prince  or 
state  or  of  any  colony,  district,  or  people,  with  whom  the  United 
States  are  at  peace,  by  adding  to  the  number  of  the  guns  of  such 
vessel  or  by  changing  those  on  board  of  her  for  guns  of  a^  larger 
caliber  or  by  adding  thereto  any  equipment  solely  applicable  to  war, 
shall  be  deemed  guilty  of  a  high  misdemeanor,  and  shall  be  fined  not 
more  than  one  thousand  dollars  and  be  imprisoned  not  more  than  one 
year. 

Sec.  5286.  Every  person,  who,  within  the  territory  or  jurisdic- 
tion of  the  United  States,  begins  or  sets  on  foot,  or  provides,  or  pre- 
pares the  means  for,  any  military  expedition  or  enterprise,  to  be  car- 
ried on  from  thence  against  the  territory  or  dominions  of  any  foreign 
prince  or  state,  or  of  any  colony,  district,  or  people,  with  whom  the 
United  States  are  at  peace,  shall  be  deemed  guilty  of  a  high  misde- 


APPENDIX  XIII  467 

meaner  and  shall  be  fined  not  exceeding  three  thousand  dollars  and 
imprisoned  not  more  than  three  years. 

Sec.  5287.  The  district  courts  shall  take  cognizance  of  all  com- 
plaints, by  whomsoever  instituted,  in  cases  of  captures  made  within 
the  waters  of  the  United  States  or  within  a  marine  league  of  the  coasts 
or  shores  thereof.     [18  St.  320.] 

In  every  case  in  which  a  vessel  is  fitted  out  and  armed,  or  attempted 
to  be  fitted  out  and  armed,  or  in  which  the  force  of  any  vessel  of  war, 
cruiser,  or  other  armed  vessel  is  increased  or  augmented,  or  in  which 
any  miUtary  expedition  or  enterprise  is  begun  or  set  on  foot,  contrary 
to  the  provisions  and  prohibitions  of  this  Title;  and  in  every  case  of 
the  capture  of  a  vessel  within  the  jurisdiction  or  protection  of  the 
United  States  as  before  defined ;  and  in  every  case  in  which  any  process 
issuing  out  of  any  court  of  the  United  States  is  disobeyed  or  resisted 
by  any  person  having  the  custody  of  any  vessel  of  war,  cruiser,  or 
other  armed  vessel  of  any  foreign  prince  or  state,  or  of  any  colony,  dis- 
trict, or  people,  or  of  any  subjects  or  citizens  of  any  foreign  prince  or 
state,  or  of  any  colony,  district,  or  people,  it  shall  be  lawful  for  the 
President,  or  such  other  person  as  he  shall  have  empowered  for  that 
purpose,  to  employ  such  part  of  the  land  or  naval  forces  of  the  United 
States  or  of  the  militia  thereof,  for  the  purpose  of  taking  possession  of 
and  detaining  any  such  vessel,  with  her  prizes,  if  any,  in  order  to  the 
execution  of  the  prohibitions  and  penalties  of  this  Title,  and  to  the 
restoring  of  such  prizes  in  the  cases  in  which  restoration  shall  be  ad- 
judged; and  also  for  the  purpose  of  preventing  the  carrying  on  of  any 
such  expedition  or  enteq^rise  from  the  territories  or  jurisdiction  of  the 
United  States  against  the  territories  or  dominions  of  any  foreign  princes 
or  state,  or  of  any  colony,  district,  or  people  with  whom  the  United 
States  are  at  peace. 

Sec.  5288.  It  shall  be  lawful  for  the  President  or  such  person  as 
he  shall  empower  for  that  purpose  to  employ  such  part  of  the  land  or 
naval  forces  of  the  United  States  or  of  the  militia  thereof,  as  shall  be 
necessary  to  compel  any  foreign  vessel  to  depart  the  United  States  in 
all  cases  in  which,  by  the  laws  of  nations  or  the  treaties  of  the  United 
States,  she  ought  not  to  remain  within  the  United  States. 

Sec.  5289.  The  owners  or  consignees  of  every  armed  vessel  sailing 
out  of  the  ports  of  the  United  States,  belonging  wholly  or  in  part  to 
citizens  thereof,  shall,  before  clearing  out  the  same,  give  bond  not  to 
commit  hostilities  against  any  country  with  whom  the  United  States 
are  at  peace. 


468  APPENDIX  XIII 

Sec.  5290.  Collectors  of  customs  are  to  detain  vessels  built  for 
warlike  purposes  and  about  to  depart  the  United  States  until  the  de- 
cision of  the  President,  or  until  the  owner  gives  bond. 

Sec.  5291.    This  applies  to  the  construction  of  the  Title.' 

'  The  British  Foreign  Enlistment  Acts  of  1819  and  1870  may  be  found 
in  2  Lorimer,  476  et  seq. 


APPENDIX  XIV 


PROCEDURE   IN   PRIZE  COURT 

DISTRICT  COURT  OF  THE  UNITED  STATES,  SOUTHERN  DIS- 
TRICT  OF   FLORIDA 

The  United  States  v.  Str.  X 
Prize 

LIBEL 

To  the  Honorable  A.  B.,  Judge  of  said  Court. 

The  libel  of  C.  D.,  Attorney  of  the  United  States,  for  the  Southern 
District  of  Florida,  who  libels  for  the  United  States  and  for  all  parties 
in  interest  against  the  steam  vessel  X,  in  a  cause  of  prize,  alleges : 

That  pursuant  to  instructions  for  that  purpose  from  the  President 
of  the  United  States,  W.  M.  of  the  United  States  Navy,  in  and  with 
the  United  States  Commissioned  ship  of  war,  the  N.,  her  officers  and 
crew,  did  on  the  22d  day  of  April,  in  the  year  of  our  Lord  One  thousand 
eight  hundred  and  ninety-eight,  subdue,  seize,  and  capture  on  the 
high  seas,  as  prize  of  war,  the  said  steam  vessel  X,  and  the  said  vessel 
and  her  cargo  have  been  brought  into  the  port  and  harbor  of  Key 
West,  in  the  state  of  Florida,  where  the  same  now  are,  within  the 
jurisdiction  of  this  Honorable  Court,  and  that  the  same  are  lawful 
prize  of  war  and  subject  to  condemnation  and  forfeiture  as  such. 

Wherefore  the  said  Attorney  prays  that  the  usual  process  of  at- 
tachment of  Prize  causes  may  issue  against  the  said  vessel  her  tackle, 
apparel,  furniture,  and  cargo,  that  Monition  may  issue  citing  all  per- 
sons, having  or  claiming  to  have  any  interest  or  property  in  said  Vessel 
and  cargo  to  appear  and  claim  the  same;  that  the  nature,  amount,  and 
value  may  be  determined;  that  due  and  proper  proofs  may  be  taken 
and  heard ;  and  that  all  due  proceedings  being  had,  the  said  vessel  X, 
together  with  her  tackle,  apparel,  furniture,  and  cargo  may,  on  the 

469 


470  APPENDIX  XIV 

final  hearing  of  this  cause,  by  the  definitive  sentence  of  this  Court  be 
condemned,  forfeited,  and  sold,  and  the  proceeds  distributed  accord- 
ing to  law.  C.  D. 

TJ.  S.  Attorney,  So.  Dist.  of  Florida. 

Key  West,  Fla.,  April  23d,  1898. 
Let  attachment  and  monition  issue  as  prayed  returnable  on  Mon- 
day the  9th  day  of  May,  1898. 

Entered  as  of  course. 

E.  F.,  Clerk, 
by  G.  H.,  Dy.  Clerk. 
Endorsed  : 

Libel  for  Prize.— Filed  Apr.  23d,  1898.     E.  F.,  Clerk. 

claimants'  petition 

To  the  Honorable  A.  B.,  Judge  of  the  District  Court  of  the  United 
States  in  and  for  the  Southern  District  of  Florida,  in  admiralty. 

The  United  States  v.  The  S.  S.  X  and  cargo 
Prize 

And  now  comes  into  Court,  I.  J.,  and  says  that  he  is  a  citizen  of 
Mobile,  Ala.,  and  agent  in  the  United  States  for  the  firm  of  P.  &  P. 
of  London,  England,  and  that  about  400,000  feet  of  pine  lumber,  being 
about  one  half  of  the  cargo,  is  the  sole  and  exclusive  property  of  the 
said  firm  of  P.  &  P.,  of  London,  England,  and  of  no  other  person  or 
persons,  and  that  no  person  or  persons  whomsoever,  enemies  of  the 
United  States,  have  any  right,  title,  or  interest  whatever  in  and  to  said 
cargo  or  any  part  thereof. 

That  the  said  firm  consists  solely  of  [names]  who  are  subjects  of 
Great  Britain,  residing  at  London,  England. 

And  he  further  denies  that  the  said  cargo  is  lawful  prize  of  war  as 
alleged  and  set  forth  in  the  captor's  libel  exhibited  and  filed  in  this 
cause. 

Now  therefore,  the  said  I.  J.,  comes  into  Court  and  claims  the  right 
to  the  possession  of  the  said  portion  of  the  said  cargo  for  the  saia 
firm  of  P.  &  P.;  and  prays  that  upon  a  hearing  of  this  cause  the  Court 
will  award  to  them  restitution  thereof  free  from  charges  for  costs  and 
expenses,  and  of  such  other  and  further  relief  in  the  premises  as  is 
right  and  just,  and  he  will  ever  pray,  etc. 

I.  J.,  Agent  for  P.  &  P. 


APPENDIX  XIV  471 

I.  J.,  being  duly  sworn,  deposes  and  says  that  he  is  the  authorized 
agent  in  the  United  States  of  said  P.  &  P,  of  London,  where  all  the 
members  of  the  firm  are  and  reside ;  that  he  knows  the  contents  of  the 
foregoing  claim;  that  the  matters  and  allegations  therein  contained 
are  true  as  therein  set  forth ;  and  that  his  knowledge  of  said  matters  is 
absolute  and  acquired  by  means  of  his  agency  in  the  United  States 
for  the  said  P.  &  P.  and  by  reason  of  his  connection  with  the  shipment 
of  the  said  cargo.  j    j 

Sworn  to  and  subscribed  before  me  this  2nd  day  of  May,  1898. 

[seal]  K.  L.,  Clerk  of  the  United  States  District  Court  for  the 

Southern  District  of  Alabama.  M.  N. 

Proctor  for  Claimant. 
Endorsed: 

Claim  for  one  half  Cargo.— Filed  May  6th,  1898, 

E.  O.,  Clerk. 

(Another  claim  for  the  other  half  was  filed  by  another  claimant.) 

At  a  stated  term  of  the  District  Court  of  the  United  States,  for  the 
Southern  District  of  Florida,  held  in  the  United  States  Court  Rooms 
at  Key  West,  on  the  day  of  May,  1898. 

Present : — 

Honorable  A.  B.,  District  Judge. 

Petition  of  Bailee  of  Owners  of  Vessel 

The  United  States  v.  The  Steamship  X  and  her  cargo 

And  now  O.  P.,  intervening  as  bailee  for  the  interest  of  [names]  in 
the  said  Steamship  X,  her  engines,  boilers,  tackle,  apparel,  furniture 
and  equipment,  appears  before  this  Honorable  Court  and  makes  claim 
to  the  said  steamship,  etc.,  as  the  same  are  attached  by  the  Marshal, 
under  process  of  this  Court,  at  the  instance  of  the  United  States  of 
America,  under  a  libel  against  said  steamship,  her  cargo,  etc.,  as  a 
prize  of  war,  and  the  said  O.  P.  avers  that  before  and  at  the  time 
of  the  alleged  capture  of  said  steamship,  her  cargo,  etc.,  the  above 
named  [names],  residing  in  England,  and  [names]  residing  in  Spain, 
all  of  whom  are  Spanish  subjects,  were  true  and  bona  fide  owners  of  the 
said  vessel,  her  engines,  boilers,  tackle,  apparel  and  furniture;  that 
no  other  person  was  the  owner  thereof,  that  he  was  in  possession 
thereof  for  the  said  owners,  and  that  the  vessel,  if  restored,  will  belong 
to  the  said  owners,  and  he  denies  that  she  was  lawful  prize. 


472  APPENDIX  XIV 

Wherefore  the  said  0.  P.,  for  and  in  behalf  of  the  said  owners,  for 
whom  he  is  duly  authorized  to  make  this  claim,  prays  to  be  admitted 
to  defend  accordingly,  and  to  show  cause  pursuant  to  the  terms  of  the 
monition  issued  herein  and  served  upon  the  said  steamship,  and  upon 
the  master  thereof,  as  bailee,  why  the  said  steamship,  her  engines,  etc., 
were  not  liable  to  be  treated  enemy's  property  at  the  time  and  place, 
and  under  the  circumstances  of  the  alleged  capture,  and  why  she  should 
not  be  condemned  as  lawful  prize  of  war,  but  should  be  restored  with 
damages  and  costs.  O.  P. 

Sworn  to  before  me  this  18th  day  of  May,  1898. 

[seal]        G.  H.,  Dy.  Clerk.  Q.  R. 

Proctor  for  Claimant. 

Endorsed  : 

Claim  to  X  by  O.  P.  Q.  R.,  Proctor  for  Claimant.— Filed  May  18th, 
1898.     E.  F.,  Clerk. 

U.  S.   DISTRICT  COURT,  SOUTHERN  DISTRICT  OF  FLORIDA 

The  United  States  v.  The  Steamship  X  and  her  cargo 

Test  Affidavit 
Southern  District  of  Florida,  S.S. 

0.  P.  being  duly  sworn,  deposes  and  says: — 

1.  I  am  the  claimant  herein  and  have  verified  the  claim  on  knowl- 
edge derived  from  my  position  as  master  of  the  vessel  about  three 
and  a  half  years  and  from  my  official  communications  with  the  ship 
owners  and  their  representatives;  the  names  and  residences  of  the 
part  owners  I  have  learned  since  my  examination  in  preparatorio,  from 
cables  to  my  counsel  to  the  said  owners. 

2.  The  X  is  a  Spanish  merchant  vessel,  and  since  I  have  been  in  com- 
mand of  her  as  aforesaid  has  traded  between  ports  in  England  and 
Spain  and  the  United  States  and  West  Indies;  the  vessel  carries  no 
passengers  or  mails,  but  is  exclusively  a  cargo  carrier. 

3.  In  the  ordinary  course  of  her  said  business  as  a  common  carrier, 
the  vessel,  in  the  month  of  April,  1898,  loaded  a  full  cargo  of  lumber, 
at  Ship  Island,  Miss.,  and  on  the  14th  of  April,  1898,  the  vessel  and 
cargo  were  cleared  at  the  Custom  House  in  Scranton,  Miss.  The  cargo 
was  destined  for  Rotterdam,  in  the  Kingdom  of  Holland,  but  the  ves- 
sel was  cleared  coastwise  from  Scranton  for  Norfolk,  in  the  State  of 


APPENDIX  XIV  473 

Virginia,  to  which  port  the  steamer  was  bound  for  coals.  In  the 
ordinary  course  of  such  a  voyage  the  foreign  clearance  of  a  vessel  for 
Rotterdam  would  have  been  obtained  and  issued  from  the  Custom 
House  in  Norfolk. 

The  vessel  was  laden  at  the  loading  port  under  the  agency  of  W.  S. 
K.  &  Co.,  an  American  firm  as  I  am  informed  and  believe,  and  con- 
formed there  in  all  things  to  the  laws  and  regulations  of  the  United 
States  and  of  said  port.  She  was  detained  at  Ship  Island  by  the  low 
water  on  the  bar  until  April  19th,  1898,  between  8  and  9  o'clock  a.m., 
when  she  sailed  from  said  place  and  proceeded  on  her  voyage  toward 
Norfolk,  Va.,  as  aforesaid. 

But  for  her  capture  and  detentions  as  heretofore  set  forth,  she  would 
have  reached  Norfolk,  and  would  have  coaled  and  sailed  from  said 
port  prior  to  May  21st,  1898, 

4.  It  appeared  from  the  ship's  papers  delivered  to  the  captors,  and 
was  a  fact,  that  her  cargo  was  all  taken  on  board  prior  to  May  21st, 
1898.  And  as  I  am  informed  and  believe,  the  vessel  was  not  otherwise 
excluded  from  the  benefits  and  privileges  of  the  President's  Proclama- 
tion of  April  26th,  1898. 

5.  At  all  times  before  the  ship's  seizure  on  April  22d,  1898,  I  and 
all  my  officers  were  ignorant  that  war  existed  between  Spain  and  the 
United  States,  and  the  vessel  was  bound  and  following  the  ordinary 
course  of  her  voyage. 

6.  While  on  the  said  voyage  and  in  due  prosecution  thereof,  at  about 
7  or  7.30  of  the  clock  in  the  morning  of  April  22d,  1898,  said  steamship 
X  being  then  about  eight  or  nine  miles  from  Sand  Key  Light,  was 
seized  and  wrongfully  captured  by  the  United  States  ship  of  war  N., 
under  the  command  of  a  line  officer  of  the  United  States  Navy,  and 
by  means  of  a  prize  crew  then  and  there  placed  on  board,  was  forcibly 
brought  into  thds  port  of  Key  West.  On  being  stopped  by  said  United 
States  ship  of  war,  N.,  and  being  informed  of  the  existence  of  war,  the 
master  and  officers  of  the  X  submitted  without  resistance  to  seizure 
and  to  the  placing  of  a  prize  crew  on  board  of  said  vessel,  proceeding 
therewith,  under  her  own  steam,  into  port. 

7.  Deponent  is  informed  and  believes  that  by  the  existing  policy 
of  the  Government  of  the  United  States,  as  evidenced  by  the  repeated 
declarations  of  its  Executive,  and  by  the  Proclamation  of  the  Presi- 
dent of  the  United  States,  issued  and  published  April  26th,  1898,  as 
well  as  upon  principles  in  harmony  with  the  present  views  of  nations 
and  sanctioned  by  recent  practice,  in  accordance  with  which  the  Pres- 


474  APPENDIX  XIV 

ident  has  directed  that  the  war  should  be  conducted,  the  steamship 
X,  at  the  time  and  place,  and  in  the  circumstances  under  which  she 
was  seized,  was  not  liable  to  be  treated  as  enemy's  property,  but  on 
the  contrary,  having  sailed  from  a  port  of  the  United  States  prior  to 
the  21st  of  April,  1898,  and  being  bound  to  another  port  of  the  United 
States,  which  in  the  ordinary  course  of  her  voyage  she  would  have 
reached  and  left,  with  her  coals,  long  prior  to  May  21st,  1898,  was 
exempt  from  capture  as  prize  of  war. 

Sworn  to  before  me  this  18th  day  of  May,  1898. 
[seal]        G.  H.,  Dy.  Clerk. 

Endorsed: 
Test  affidavit  for  X— Filed  May  16th,  1898.     E.  F.;  Clerk. 

IN  THE  DISTRICT  COURT  OF  THE  UNITED  STATES, 
SOUTHERN  DISTRICT  OF  FLORIDA 

United  States  v.  Spanish  Steamer  X  and  Cargo 

Prize.    Decree 

This  cause  having  come  on  to  be  heard  upon  the  allegations  of  the 
libel,  the  claims  of  the  master,  and  testimony  taken  in  preparatorio,  and 
the  same  having  been  fully  heard  and  considered,  and  it  appearing  to  the 
Court  that  the  said  steamer  X  was  enemy's  property,  and  was  upon 
the  high  seas  and  not  in  any  port  or  place  of  the  United  States  upon 
the  outbreak  of  the  war,  and  was  liable  to  condemnation  and  seizure, 
it  is  ordered  that  the  same  be  condemned  and  forfeited  to  the  United 
States  as  lawful  prize  of  war;  but  it  appearing  that  the  cargo  of  said 
steamer  was  the  property  of  neutrals,  and  not  contraband  or  subject 
to  condemnation  and  forfeiture,  it  is  ordered  that  said  cargo  be  released 
and  restored  to  the  claimants  for  the  benefit  of  the  true  and  lawful 
owners  thereof. 

It  is  further  ordered  that  the  Marshal  proceed  to  advertise  and  sell 
said  vessel,  and  make  deposit  of  the  proceeds  in  accordance  with  law. 

A.  B.,  Judge. 
Key  West,  Florida,  May  27th,  1898. 

Endorsed  : 

Decree.— Filed  May  27th,  1898.    E.  F.,  Clerk. 


APPENDIX  XIV  475 

FORM  OF  DECREE  OF  DISTRIBUTION 

DISTRICT  COURT  OF  THE  UNITED  STATES,  SOUTHERN 
DISTRICT  OF  FLORIDA 

The  United  States  Prize 

V.  Captured, 1898 


A  Final  Decree  of  Condemnation  of  Vessel  and  Cargo  having  been  pro- 
nounced in  this  Case,  and  no  Appeal  being  taken,  and  it  Appearing  to  the 
Court  that  the  Gross  Proceeds  of  the  Sales  are  as  follows, —  to-wit, — 
Vessel, 
Cargo, 
Total, 
And  the  Costs,  Expenses  and  Charges  as  taxed  and  allowed  are  as  follows, — 
Marnhal's  Fees  and  Charges  including  all  expenses  of  Sales,  Advertising, 
and  Auctioneer's  Commissions, 
District  Attorney's  Fees, 
Prize  Commissioner's  Fees  and  Expenses, 
Clerk's  Fees, 
Leaving  a  Net  Residue  of ($ ) 

And  it  appearing  to  the  Court  upon  the  Report  of  the  Prize  Commissioner, 

that  the   U.  S.  S 

Commanding,  was  the  sole  Capturing  Vessel,  and  entitled  to  share  in  the 
Prize,  and  was  of  Superior  Force  to  the  Captured  Vessel,  and  it  appearing 
that  the  Marshal  has  paid  and  satisfied  the  Bills  of  Costs  and  Charges  as 
herein  taxed,  and  allowed,  it  is  Ordered  that  the  same  be  paid  to  him  out 
of  the  money  on  Deposit  with  the  Assistant  Treasurer  of  the  United  States 
subject  to  the  Court  in  this  case,  and  it  is  Further  Ordered  that  the  said 
Residue  of  the  Gross  Proceeds  deposited  with  the  Assistant  Treasurer  in 
this  Case  be  paid  into  the  Treasury  of  the  United  States,  for  Distribution, 

one  half  to  the  officers  and  crew  of  said and  one  half  to  the  United 

States.* 


Judge  of  the  District  Court  of  the  United  States, 
for  the  Southern  District  of  Florida. 

1  See  U.  S.  Statute  cited  in  Sec.  141  (c),  p.  344. 


APPENDIX  XV 

DIGEST  OF   IMPORTANT  CASES   ARRANGED 
UNDER   TITLES 

16.     Precedent  and  Decisions 

Bolton  V.  Gladstone,  5  East,  155 

In  an  action  on  a  policy  of  insurance  in  1804  on  a  Danish  ship  and 
cargo  warranted  neutral  and  captured  by  a  French  ship  of  war  (Den- 
mark being  at  peace  with  France),  it  appeared  that  the  court  in  which 
the  Danish  ship  was  libeled  declared  her  good  and  lawful  prize.  Held 
by  EUenborough  C.  J.,  "that  all  sentences  of  foreign  courts  of  compe- 
tent jurisdiction  to  decide  questions  of  prize"  were  to  be  received  "as 
conclusive  evidence  in  actions  upon  policies  of  assurance,  upon  every 
subject  immediately  and  properly  within  the  jurisdiction  of  such  for- 
eign courts,  and  upon  which  they  have  professed  to  decide  judicially." 

United  States  v.  Rauscher,  119  U.  S.  407 

The  defendant  was  extradited  from  England  on  the  charge  of  mur- 
der committed  on  an  American  vessel  on  the  high  seas.  He  was  in- 
dicted in  the  United  States  Circuit  Court,  not  for  murder,  but  for  a 
minor  offense  not  included  in  the  treaty  of  extradition.  It  was  held 
that  he  could  not  be  tried  for  any  other  offense  than  murder  imtil  he 
had  had  an  op]:)ortunity  to  return  to  the  country  from  which  he  was 
taken  for  the  purpose  alone  of  trial  for  the  offense  specified  in  the 
demand  for  his  surrender. 

22.    Recognition  of  New  States 

Harcourt  v.  Gaillard,  12  Wheat.  523 

This  case  is  fully  stated  in  the  text,  p.  47. 

Williams  v.  The  Suffolk  Insurance  Company,  13  Pet.  415 

This  case  held  that  when  the  executive  branch  of  the  government, 
which  is  charged  with  the  foreign  relations  of  the  United  States  shall, 

476 


APPENDIX  XV  477 

in  its  correspondence  with  a  foreign  nation;  assume  a  fact  in  regard 
to  the  sovereignty  of  any  island  or  country,  it  is  conclusive  on  the 
judicial  department. 

State  of  Mississippi  v.  Johnson,  4  Wall.  475,  501 

This  case  held  that  "a  bill  praying  an  injunction  against  the  execu- 
tion of  an  act  of  Congress  by  the  incumbent  of  the  presidential  office 
cannot  be  received,  whether  it  describes  him  as  President  or  as  a 
citizen  of  a  state." 

Jones  v.  United  States,  137  U.  S.  202 

This  case  held  that  the  determination  of  the  President,  under  U.  S. 
Rev.  Sts.,  §  5570,  that  a  guano  island  shall  be  considered  as  apper- 
taining to  the  United  States,  may  be  declared  through  the  Department 
of  State,  whose  acts  in  this  regard  are  in  legal  contemplation  the  acts 
of  the  President. 

56.    Vessels 
Wildenhus's  Case,  120  U.  S.  1 

This  case  held  that  the  Circuit  Court  of  the  United  States  has  juris- 
diction to  issue  a  writ  of  habeas  corpus  to  determine  whether  one  of  the 
crew  of  a  foreign  vessel  in  a  port  of  the  United  States,  who  is  in  the 
custody  of  the  state  authorities,  charged  with  the  commission  of  a 
crime,  within  the  port,  against  the  laws  of  the  state,  is  exempt  from 
local  jurisdiction  under  the  provisions  of  a  treaty  between  the  United 
States  and  the  foreign  nation  to  which  the  vessel  belongs.  The  Con- 
vention of  March  9,  1880,  between  Belgium  and  the  United  States  was 
considered. 

67.    Extradition 

In  the  Matter  of  Metzger,  5  How.  176,  188 

This  case  held  that  the  Treaty  with  France  of  1843  provides  for  the 
mutual  surrender  of  fugitives  from  justice  and  that  where  a  district 
judge  decided  that  there  was  sufficient  cause  for  the  surrender  of  a 
person  claimed  by  the  French  Government,  and  committed  him  to 
custody  to  await  the  order  of  the  President  of  the  United  States,  the 
Supreme  Court  had  no  jurisdiction  to  issue  a  habeas  corpus  for  the 
purpose  of  reviewing  that  decision. 


478  APPENDIX  XV 

103.      NONCOMBATANTS 

Aldnous  V.  Nigreu,  4  Ellis  and  Blackburn,  217 

This  was  an  action  for  work  and  labor  brought  by  a  Russian  against 
an  Englishman  during  the  Crimean  war.  Lord  Campbell  said:  "The 
contract  having  been  entered  into  before  the  commencement  of  hostil- 
ities is  valid;  and,  when  peace  is  restored,  the  plaintiff  may  enforce  it 
in  our  Courts.  But,  by  the  law  of  England,  so  long  as  hostiUties  pre- 
vail he  cannot  sue  here." 

106.    Personal  Property  of  Enemy  Subjects 

Brown  v.  United  States,  8  Cr.  110 

It  was  held  that  British  property  within  the  territory  of  the  United 
States  at  the  beginning  of  hostiUties  with  Great  Britain  could  not  be 
condemned  without  a  legislative  act,  and  that  the  act  of  Congress  de- 
claring war  was  not  such  an  act.  The  property  in  question  was  the 
cargo  of  an  American  ship  and  was  seized  as  enemy's  property  in  1813, 
nearly  a  year  after  it  had  been  discharged  from  the  ship. 

112.     Privateers 

United  States  v.  Baker,  5  Blatchford,  6 

This  was  an  indictment  in  1861  against  Baker,  the  master  of  a  pri- 
vate armed  schooner,  and  a  part  of  the  officers  and  crew  for  piracy. 
They  claimed  to  have  acted  under  a  commission  from  Jefferson  Davis, 
President  of  the  Confederate  States  of  America.  Nelson  J.  charged 
the  jury  at  length;  but  they  failed  to  agree  on  a  verdict. 

114.    Capture  and  Ransom 

The  Grotius,  9  Cr.  368 

The  question  in  this  case,  which  was  heard  in  1815,  was  whether 
the  capture  was  valid.  The  master,  the  mate,  and  two  of  the  seamen 
swore  that  they  did  not  consider  the  ship  to  have  been  seized  as  prize, 
and  that  the  young  man  who  was  put  on  board  by  the  captain  of  the 
privateer  was  received  and  considered  as  a  passenger  during  the  resi- 
due of  the  voyage.  It  was  held  that  the  validity  of  the  capture  of  the 
vessel  as  a  prize  of  war  was  sufficiently  established  by  the  evidence. 


APPENDIX  XV  479 

115.    Postliminium 

The  Two  Friends,  1  C.  Rob.  271 

An  American  ship  was  taken  by  the  French  in  1799  when  the  rela- 
tions between  France  and  America  were  strained.  She  was  recap- 
tured by  the  crew,  some  of  whom  were  British  seamen.  They  were 
awarded  salvage. 

The  Santa  Cruz,  1  C.  Rob.  49 

A  Portuguese  vessel  was  taken  by  the  French  in  1796  and  retaken 
by  English  cruisers  a  few  days  later.  It  was  held  that  the  law  of  Eng- 
land, on  recapture  of  property  of  allies,  is  the  law  of  reciprocity;  it 
adopts  the  rule  of  the  country  to  which  the  claimant  belongs. 

117.    Non-hostile  Relations  of  Belligerents 

The  Venus,  4  C.  Rob.  355 

A  British  vessel  went  to  Marseilles,  under  cartel,  for  the  exchange 
of  prisoners,  and  there  took  on  board  a  cargo  and  was  stranded  and 
captured  on  a  voyage  to  Port  Mahon.  Held  that  the  penalty  was 
confiscation. 

The  Sea  Lion,  5  Wall.  630 

This  case  held  that  a  license  from  a  "  Special  Agent  of  the  Treasury 
Department  and  Acting  Collector  of  Customs"  in  1863  to  bring  cotton 
"from  beyond  the  United  States  military  lines"  had  no  warrant  from 
the  Treasury  Regulations  prescribed  by  the  President  conformably  to 
the  act  of  13th  July,  1861. 

121.    Termination  of  War  by  Treaty  op  Peace 

The  Schooner  Sophie,  6  C.  Rob.  138 

A  British  ship,  having  been  captured  by  the  French,  was  condemned 
in  1799  by  a  French  Consular  Court  in  Norway.  Other  proceedings 
were  afterwards  had,  on  former  evidence  in  the  case,  in  the  regular 
Court  of  Prize  in  Paris  and  the  sentence  of  the  Consular  Court  was  af- 
firmed. Sir  WiUiam  Scott  said:  "I  am  of  opinion,  therefore,  that  the 
intervention  of  peace  has  put  a  total  end  to  the  claim  of  the  British 
proprietor,  and  that  it  is  no  longer  competent  to  him  to  look  back  to 
the  enemy's  title,  either  in  his  own  possession,  or  in  the  hands  of  neu- 
tral purchasers." 


480  APPENDIX  XV 

128.    Neutral  Territorial  Jurisdiction 

The  Caroline 

People  V.  McLeod,  25  Wendell,  483 

During  the  Canadian  rebellion  of  1837-1838,  a  force  was  sent  in  the 
night  by  the  British  commander  to  capture  the  steamer  Caroline, 
o^ed  by  an  American.     The  steamer  was  engaged  in  transporting 
war  material  and  men  to  Navy  Island,  in  the  Niagara  River,  through 
which  runs  the  line  separating  the  British  from  the  American  posses- 
sions.    The  vessel  not  being  in  her  usual  place  in  Canadian  waters, 
the  force  went  into  American  jurisdiction  and  seized  and  destroyed 
her.     One  Durfee,  an  American,  was  killed.     To  the  American  asser- 
tion that  the  proceeding  was  an  outrage,  the  British  Government 
replied  that  the  insurgents  had  used  American  ground  as  the  starting- 
point  of  their  expeditions  and  as  their  base  of  supplies.     The  contro- 
versy was  renewed  by  the  arrest,  in  1841,  in  the  State  of  New  York,  of 
one  McLeod,  and  his  indictment  for  the  murder  of  Durfee.     Great 
Britain  demanded  the  release  of  McLeod,  stating  that  as  he  was  an 
agent  of  the  British  Government  engaged  at  the  time  in  a  public  duty, 
he  could  not  be  held  amenable  to  the  laws  of  any  foreign  jurisdiction. 
Mr.  Webster,  then  Secretary  of  State,  admitted  the  correctness  of  the 
British  contention,  but  seemed  powerless  to  obtain  the  release  of 
McLeod,  on  account  of  the  inherent  weakness  of  the  Federal  system.^ 
The  Supreme  Court  of  the  State  of  New  York  held  in  People  v.  McLeod, 
that  McLeod  could  be  proceeded  against  individually  on  an  indictment 
for  arson  and  murder,  though  his  acts  had  been  subsequently  averred 
by  the  British  Government.     This  view  was  generally  condemned  by 
jurists ;  ^  but  the  difficulty  soon  ended  by  the  acquittal  of  McLeod. 
The  British  Government's  contention  was  that  the  seizure  of  the 
Caroline  was  excusable  on  the  ground  stated  by  Mr.  Webster  himself 
as   "a  necessity  of  self-defense,  instant,  overwhelming,  leaving  no 
choice  of  means  and  no  moment  for  deliberation." 

The  Twee  Gebroeders,  3  C.  Rob.  162 

This  case  holds  that  a  ship  within  three  miles  of  neutral  territory 
cannot  send  boats  beyond  the  line  of  division  for  the  purpose  of  cap- 
turing enemy  vessels. 

»  See  2  Moore,  pp.  25  ff.  '  See  ibid.,  p.  26. 


APPENDIX  XV  481 

131.    Positive  Obligations  of  a  Neutral  State 
The  Alabama  Cases 

Up  to  the  period  of  the  American  civil  war  the  opinion  obtained 
among  many  that  a  vessel  of  war  might  be  sent  to  sea  from  a  neutral 
port  with  the  sole  liability  to  capture  as  legitimate  contraband,  with 
the  exception  that,  if  she  was  ready  to  go  in  condition  for  immediate 
warlike  use,  it  was  the  duty  of  the  neutral  to  prevent  her  departure. 
In  1863  during  the  American  civil  war  this  view  was  practically  taken 
by  the  British  court  in  the  case  of  the  Alexandra; '  but  the  vessel  after 
her  release  was  taken  on  a  new  complaint  at  Nassau  and  held  until 
after  the  end  of  the  war.  Lawrence  says  that  the  attitude  of  the  Brit- 
ish Government  in  regard  to  this  vessel,  its  purchase  in  1863  of  two 
iron-clad  rams  of  the  Messrs.  Laird  for  the  navy,  the  construction,  des- 
tination, and  intended  departure  of  which  occasioned  the  now  famous 
correspondence  between  Lord  Russell  and  Mr.  Adams,  the  detention 
of  the  Fampero,  which  was  seized  in  the  Clyde,  until  the  end  of  the 
American  civil  war,  and  the  preventing  the  sale  of  "Anglo-Chinese 
gunboats  against  the  advice  of  its  own  law  officers,"  indicated  that 
that  government  "had  uneasy  doubts  as  to  the  validity  of  the  doc- 
trine laid  down  in  their  law-courts  and  maintained  in  their  dispatches."  ^ 
This  doctrine  would  admit  of  a  ship  of  war  going  to  sea  from  a  neutral 
port  without  arms,  which  she  might  receive  on  the  high  seas  from  an- 
other vessel  which  had  sailed  from  the  same  port.  For  example,  the 
Alabama  left  Liverpool  in  1862  ready  for  warlike  use,  but  without  war- 
like equipment.  This  and  her  crew  were  received  on  the  high  seas 
from  other  vessels  which  had  cleared  from  Liverpool;  and  her  career 
as  a  Confederate  cruiser  then  began.  The  cases  of  the  Florida,  the 
Georgia,  and  the  Shenandoah  were  almost  identical.  The  spoliations 
committed  by  these  vessels  led  to  the  Alabama  claims,  the  British 
maintaining  that  the  American  contention  that  it  was  the  duty  of  a 
neutral  to  prevent  the  departure  of  all  vessels  that  could  reasonably 
be  expected  as  about  to  be  used  for  warlike  puqDoses  was  unsound.' 

The  Alabama  case  and  kindred  cases  have  produced  much  specula- 

1  Attorney  Gen'l  v.  Siliem  et  als,  2  Hurlstone  v.  Coltman,  Exchequer 
Reports,  431. 

^  Page  544.  For  the  cases  of  the  "Pampero"  and  the  two  iron-clad 
rams,  see  Wheat.  D.,  note  p.  572  et  seq. 

3  The  American  view  may  be  found  in  Cushing's  "Treaty  of  Washing- 
ton," and  the  British  in  Bernard's  "Historical  Account  of  the  Neutrality 
of  Great  Britain  during  the  American  Civil  War." 


482  APPENDIX  XV 

tion  as  to  the  establishment  of  a  true  and  correct  rule.  After  the  en- 
actment of  the  American  neutrality  statutes  in  1818,  there  were  numer- 
ous decisions  of  the  United  States  courts  to  the  effect  that  the  intent 
was  to  govern,  that  is,  if  the  purpose  was  to  send  articles  of  contra- 
band, with  the  risk  of  capture,  to  a  belligerent's  country  for  sale,  the 
neutral  government  had  nothing  to  say,  but  if  the  purjDOse  was  to 
send  out  a  vessel  to  prey  on  the  commerce  of  a  friendly  power,  then 
the  neutral  government  should  prevent  her  departure.  It  must  be 
admitted  that  the  rule  is  hardly  satisfactory.' 

Hall  contends  that  the  true  test  should  be  "the  character  of  the  ship 
itself."  If  built  for  warlike  use,  the  vessel  should  be  detained;  if  for 
commercial  purjjoses,  she  should  be  allowed  to  depart.  This  rule  has 
at  least  one  element  of  fairness  and  sense.  It  is  not  always  possible 
to  get  at  intent,  but  the  character  of  the  vessel  is  likely  to  reward 
observation  and  scrutiny.^ 

Regret  has  been  expressed  by  many  writers  that  the  award  of  the 
arbitrators  appointed  imder  the  Treaty  of  Washington  of  1871,  upon 
the  Alabama  claims,  has  proved  of  so  little  value  as  a  precedent  upon 
the  liability  of  a  neutral  power  for  the  departure  from  its  ports  of  ves- 
sels fitted  out  and  equipped  for  the  destruction  of  belligerent  com- 
merce. 

Article  VI  of  the  Treaty  provided  that  the  Arbitrators  should  be 
"  governed  by  the  following  three  rules,  which  are  agreed  upon  by  the 
high  contracting  parties  as  rules  to  be  taken  as  applicable  to  the  case, 
and  by  such  principles  of  international  law  not  inconsistent  therewith 
as  the  Arbitrators  shall  determine  to  have  been  apphcable  to  the  case. 

"A  neutral  Government  is  bound — 

"First  to  use  due  diligence  to  prevent  the  fitting  out,  arming,  or 
equipping,  within  its  jurisdiction,  of  any  vessel  which  it  has  reasonable 
ground  to  believe  is  intended  to  cruise  or  to  carry  on  war  against  a 
Power  with  which  it  is  at  peace ;  and  also  to  use  Uke  dihgence  to  pre- 
vent the  departure  from  its  jurisdiction  of  any  vessel  intended  to  cruise 
or  carry  on  war  as  above,  such  vessel  having  been  specially  adapted, 
in  whole  or  in  part,  within  such  jurisdiction,  to  warlike  use. 

"Secondly,  not  to  permit  or  suffer  either  belligerent  to  make  use 
of  its  ports  or  waters  as  the  base  of  naval  operations  against  the  other, 
or  for  the  purpose  of  the  renewal  or  augmentation  of  miUtary  supplies 
or  arms,  or  the  recruitment  of  men. 

"Thirdly,  to  exercise  due  diligence  in  its  own  ports  and  waters,  and, 
»  See  Wheat.  D.,  note  p.  553  et  seq.  «  Hall,  p.  612. 


APPENDIX  XV  483 

as  to  all  persons  within  its  jurisdiction,  to  prevent  any  violation  of  the 
foregoing  obligations  and  duties." 

The  British  Government  declared  that  it  "cannot  assent  to  the  fore- 
going rules  as  a  statement  of  principles  of  international  law  which  were 
in  force  at  the  time  when  the  claims  mentioned"  arose  but  "in  order 
to  evince  its  desire  of  strengthening  the  friendly  relations  between  the 
two  countries  and  of  making  satisfactory  provision  for  the  future, 
agrees  that  in  deciding  the  questions  between  the  two  countries  arising 
out  of  those  claims,  the  Arbitrators  should  assume  that  her  Majesty's 
Government  had  undertaken  to  act  upon  the  principles  set  forth  in 
these  rules. 

"And  the  high  contracting  parties  agree  to  observe  these  rules  as 
between  themselves  in  the  future,  and  to  bring  them  to  the  knowl- 
edge of  other  maritime  Powers,  and  to  invite  them  to  accede  to 
them."  » 

The  phrases  "due  diHgence"  and  "base  of  naval  operations"  gave 
rise  to  a  difference  of  opinion,  as  also  the  last  part  of  paragraph  "  First " 
relative  to  preventing  the  departure  of  vessels  intended  to  carry  on  war 
and  adapted  for  warlike  use. 

The  contentions  and  the  decision  relative  to  the  last  point  were  as 
follows : 

1.    The  British  Contention 

This  was  that  the  only  duty  of  Great  Britain  applied  to  the  departure 
of  the  vessel  originally,  and  that,  if  she  escai)ed,  and  afterwards  as  a 
duly  commissioned  war-ship  entered  a  British  port,  there  was  no  obli- 
gation to  detain  her.^  The  case  of  the  Schooner  Exchange  v.  M 'Fad- 
don  '  was  cited,  in  which  a  libel  was  filed  in  1811  against  that  vessel, 
then  in  American  waters,  as  an  American  vessel  unlawfully  in  the 
custody  of  a  Frenchman,  the  libelants  contending  that  in  December, 
1810,  while  pursuing  her  voyage  she  had  been  forcibly  taken  by  a 
French  vessel  at  sea.  The  Attorney  General  suggested  that  she  was  a 
public  armed  vessel  of  France,  visiting  our  waters  as  a  matter  of  neces- 
sity. Chief  Justice  Marshall  decided  that  as  a  public  vessel  of  war  com- 
ing into  our  ports  and  demeaning  herself  in  a  friendly  manner  she  was 
exempt  from  the  jurisdiction  of  the  country. 

'  U.  S.  Treaties,  481. 

'  Argument  of  Sir  R.  Palmer  in  the  "Argument  at  Geneva,"  published 
by  the  United  States  at  p.  426  et  seq. 
3  7  Cranch,  116. 


484  APPENDIX  XV 

2,    The  American  Contention 

This  was  that  if  a  Confederate  cruiser,  which  had  originally  escaped, 
afterwards  came  into  a  British  port,  her  commission  was  no  protection, 
as  it  was  given  by  a  government  whose  belligerency  only,  not  sover- 
eignty, had  been  acknowledged.* 

3.    The  Award  op  the  Tribunal 

This  award  exceeded  the  claim  of  the  United  States  in  deciding  that 
"the  effects  of  a  violation  of  neutrality  committed  by  means  of  the 
construction,  equipment  and  armament  of  a  vessel  are  not  done  away 
with  by  any  commission  which  the  Government  of  the  belligerent 
power,  benefited  by  the  violation  of  neutrality,  may  afterwards  have 
granted  to  that  vessel;  and  the  ultimate  step,  by  which  the  offense 
is  completed,  cannot  be  admissible  as  a  ground  for  the  absolution  of 
the  offender,  nor  can  the  consummation  of  his  fraud  become  the  means 
of  establishing  his  innocence,"  that  "the  privilege  of  extraterritoriality 
accorded  to  vessels  of  war  has  been  admitted  into  the  law  of  nations, 
not  as  an  absolute  right,  but  solely  as  a  proceeding  founded  on  the  prin- 
ciples of  courtesy  and  mutual  deference  between  different  nations,  and 
therefore  can  never  be  appealed  to  for  the  protection  of  acts  done  in 
violation  of  neutrality,"  and  that  "the  absence  of  a  previous  notice 
cannot  be  regarded  as  a  failure  in  any  consideration  required  by  the 
law  of  nations,  in  those  cases  in  which  a  vessel  carries  with  it  its  own 
condemnation."  ^ 

That  the  decision  of  the  Tribunal  has  not  become  a  precedent  is 
quite  generally  conceded.  Lawrence  asserts  that  the  award  seems  "  to 
have  been  dictated  more  by  a  regard  for  equitable  considerations  than 
by  reference  to  principles  hitherto  accepted  among  nations  " ;  that  other 
nations  have  refused  to  accede  to  the  "three  rules"  and  "that  it  has 
been  doubted  whether  they  bind  the  two  powers  which  originally  con- 
tracted to  observe  them."  ^ 

It  is  to  be  observed,  however,  that  at  the  present  time  a  cruiser  is 
of  such  peculiar  construction  and  depends  for  her  efficiency  on  such  a 
large  outlay  of  money  that  an  honest  neutral  is  likely  to  have  abundant 
proof  of  her  character  and  hence  the  best  reasons  for  detaining  her, 

1  Argument  of  Mr.  Evarts  in  "Argument  at  Geneva,"  p.  448  et  seq. 

2  Decision  and  Award  of  the  Tribunal  of  Arbitration  in  3  Wharton,  §  402  a. 
» Pp.  553,  554. 


APPENDIX  XV  485 


133.  Contraband 


The  Peterhojf,  5  Wall.  28,  62 

The  Peterhojf,  a  British  steamer,  bound  from  London  to  Matamoras 
in  Mexico,  was  seized  in  1863  by  a  United  States  vessel.  It  was  held 
that  the  mouth  of  the  Rio  Grande  was  not  included  in  the  blockade 
of  the  ports  of  the  Confederate  states;  that  neutral  commerce  with 
Matamoras,  a  neutral  town  on  the  Mexican  side  of  the  river,  except  in 
contraband  destined  to  the  enemy,  was  entirely  free;  and  that  trade 
between  London  and  Matamoras,  even  with  intent  to  supply,  from 
Matamoras,  goods  to  Texas,  then  an  enemy  of  the  United  States,  was 
not  unlawful  on  the  ground  of  such  violation.  Questions  of  contra- 
band were  also  considered,  and  Chief  Justice  Chase  concluded:  "Con- 
sidering .  .  .  the  almost  certain  destination  of  the  ship  to  a  neutral 
port,  with  a  cargo,  for  the  most  part,  neutral  in  character  and  destina- 
tion, we  shall  not  extend  the  effect  of  this  conduct  of  the  captain  to 
condemnation,  but  we  shall  decree  payment  of  costs  and  expenses  by 
the  ship  as  a  condition  of  restitution." 

The  Commercen,  1  Wheat.  382 

In  1814,  during  the  war  between  the  United  States  and  Great  Brit- 
ain, a  Swedish  vessel  bound  from  Limerick,  Ireland,  to  Bilboa,  Spain, 
with  cargo  of  barley  and  oats,  the  property  of  British  subjects,  was 
seized  and  brought  into  an  American  port.  The  cargo  was  shipped 
for  the  sole  use  of  the  British  forces  in  Spain.  The  cargo  was  con- 
demned. 

134,     Penalty  for  Carrying  Contraband 

The  Jonge  Tobias,  1  C.  Rob.  329 

This  was  a  case  of  a  ship  taken  on  a  voyage  from  Bremen  to  Rochelle, 
laden  with  tar.  The  ship  was  claimed  by  one  Schraeder  and  others. 
Schraeder,  who  was  owner  of  the  cargo,  withheld  his  claim,  knowing 
it  would  affect  the  ship.  The  cargo  and  his  share  of  the  vessel  were 
condemned  in  1799,  and  an  attestation  was  required  of  the  other  part 
owners  of  the  vessel  that  they  had  no  knowledge  of  the  contraband 
goods. 


486  APPENDIX  XV 

The  Magnus,  1  C.  Rob.  31 

A  ship  laden  with  coffee  and  sugars  was  taken  on  a  voyage  from 
Havre  to  Genoa.  The  claimant  of  the  cargo  was  a  Swiss  merchant. 
Held,  that  while  interior  countries  are  allowed  to  export  and  import 
through  an  enemy's  ports,  strict  proof  of  property  is  required.  The 
cargo  was  condemned. 

135.    Unneutral  Service 
The  Kow-Shing  Affair,  Takahashi,  24-51 

On  July  25,  1894,  a  Japanese  war-ship  stopped  the  Kow-Shing,  a 
British  transport  engaged  in  carrying  Chinese  troops.  After  fruitless 
parleying,  the  Kow-Shing  refusing  to  surrender  as  her  British  captain 
was  overawed  by  the  Chinese  he  was  carrying,  the  Kow-Shing  was  sunk 
by  the  Japanese  war-ship.  The  affair  produced  great  excitement  in 
England,  and  there  was  a  demand  of  satisfaction  from  Japan  on  the 
ground  that  war  had  not  been  declared  between  that  country  and 
China.  The  facts  appearing  that  a  declaration  of  war  is  not  necessary, 
and  that  the  British  captain  of  the  transport  was  under  compulsion, 
the  affair  was  referred  to  Mr.  Choate,  the  American  Ambassador  to 
Great  Britain,  as  referee. 

The  Friendship,  6  C.  Rob.  420,  429 

This  was  the  case  of  an  American  ship  bound  on  a  voyage  from  Bal- 
timore to  Bordeaux,  with  a  light  cargo  and  ninety  French  mariners  as 
passengers,  shipped  by  direction  of  the  French  minister  in  America^  In 
condemning  the  ship  and  cargo  in  1807,  Sir  William  Scott  said:  "It  is 
the  case  of  a  vessel  letting  herself  out  in  a  distinct  manner,  under  a 
contract  with  the  enemy's  government,  to  convey  a  number  of  persons, 
described  as  being  in  the  service  of  the  enemy,  with  their  military  char- 
acter traveling  with  them,  and  to  restore  them  to  their  own  country 
in  that  character." 

The  Orozemho,  6  C.  Rob.  430 

An  American  vessel,  having  been  ostensibly  chartered  by  a  mer- 
chant at  Lisbon  "  to  proceed  in  ballast  to  Macao,  and  there  to  take  a 
cargo  to  America,"  was  afterwards,  by  his  directions,  fitted  up  for 


APPENDIX  XV  487 

three  military  officers  and  two  persons  in  civil  departments  in  the 
government  of  Batavia,  who  had  come  from  Holland  to  take  their 
passage  to  Batavia,  under  the  appointment  of  the  Government  of 
Holland.  The  vessel  was  condemned  in  1807  as  a  transport,  let  out 
in  the  service  of  the  government  of  Holland. 

The  Atalanta,  6  C.  Rob.  440 

A  Bremen  ship  and  cargo  were  captured  on  a  voyage  from  Batavia 
to  Bremen,  in  July,  1807  having  come  last  from  the  Isle  of  France, 
where  a  packet,  containing  dispatches  from  the  government  of  the 
Isle  of  France  to  the  Minister  of  Marine  at  Paris,  was  taken  on  board 
by  the  master  and  one  of  the  supercargoes,  and  was  afterwards  found 
concealed  in  the  possession  of  the  second  supercargo.  Both  ship  and 
cargo  were  condemned. 


139.    Violation  of  Blockade 

The  Juffrow  Maria  Schroeder,  3  C.  Rob.  147 

"Where  a  ship  has  contracted  the  guilt  by  sailing  with  an  intention 
of  entering  a  blockaded  port,  or  by  sailing  out,  the  offense  is  not  purged 
away  till  the  end  of  the  voyage ;  till  that  period  is  completed,  it  is  com- 
petent to  any  cruisers  to  seize  and  proceed  against  her  for  that  offense." 
In  this  case  the  plea  of  remissness  in  the  blockading  force  in  permitting 
vessels  to  go  in  or  out,  was  held  to  avail,  and  the  ship,  which  was  a  Prus- 
sian one  taken  on  a  voyage  from  Rouen  to  Altona  and  proceeded 
against  for  a  breach  of  the  blockade  of  Havre,  was  restored. 

140.    Continuous  Voyages 

The  Hart,  3  Wall.  559,  560 

"  Neutrals  who  place  their  vessels  under  belligerent  control  and  en- 
gage them  in  belligerent  trade ;  or  permit  them  to  be  sent  with  contra- 
band cargoes  under  cover  of  false  destination  to  neutral  ports,  while 
the  real  destination  is  to  belligerent  ports,  impress  upon  them  the 
character  of  the  belligerent  in  whose  service  they  are  employed,  and 
cannot  complain  if  they  are  seized  and  condemned  as  enemy  property." 
See  the  preceding  case,  The  Bermuda,  3  Wall.  514. 


488  APPENDIX  XV 

The  Maria,  5  C.  Rob.  365 

This  was  a  case  of  a  continuous  voyage  in  the  colonial  trade  of  the 
enemy.  The  Court  reviewed  former  cases  and  asked  for  further  proof 
on  the  facts.  On  such  further  proof  the  court  decreed  restitution. 
See  The  William,  5  C.  Rob.  385. 

141.     Prize  and  Prize  Courts 

The  Ship  La  Manche,  2  Sprague,  207 

This  case  held  that  captors  are  not  liable  for  damages  where  the 
vessel  captured  presents  probable  cause  for  the  capture,  even  though 
she  was  led  into  the  predicament  involuntarily,  and  by  the  mistakes 
of  the  revenue  officers  of  the  captor's  own  government. 


INDEX 


INDEX 


Abrogation  of  treaties,  238. 

Absolutely  contraband,  what  articles 
are,  316. 

Accretion,     acquisition     of     territory 
by,  112. 

Acquisition     of     territorial     jurisdic- 
tion, 108. 

Admiralty  law,    a   basis   of   interna- 
tional law,  10. 

Aerial  jurisdiction,  129. 

Africa,  partition  of,  100,  113,  114. 

Agreements.     See  Treaties. 

Aids  to  the  memory,  what  they  are, 
176. 

Aix-Ia-Chapelle,  treaty  of,  21,  162, 
174,  210. 

Alabama  case.  See  Geneva  Arbi- 
tration. 

Alaska,  sale  of,  to  the  United  States, 
111;  territorial  waters  of,  124,  125. 

Aliens,  rights  of,  as  to  naturalization, 
134-138;  jurisdiction  over,  138-140. 

Alternat,  use  of,  in  signing  treaties, 
98,  175,  203. 

Amalfitan  tables.     See  Sea  Laws. 

Ambassadors,  sending  of,  14;  juris- 
diction of  Supreme  Court  as  to, 
38;  immunities  of  vessels  carrjdng, 
128;  office  of,  in  early  days,  160, 
161;  rules  as  to,  162-166;  suite  of, 
166,  167;  who  may  send,  167;  who 
may  be  sent  as,  168;  credentials, 
etc.,  of,  169  et  seq.;  ceremonial  as 
to,  171-175;  functions  of,  176-177; 
termination  of  mission  of,  178-180; 
immunities  and  privileges  of,  ISO- 
ISO. 

American  policies,  85. 

Amnesty,  treaty  of  peace  as  to,  203. 

491 


Angary,  320  n. 

Appeal  from  prize  courts,  38,  342. 

Arbitration,  Hague  Convention,  222, 
223;  Permanent  Court  of,  224.  See 
Courts  of  Arbitration,  Geneva  Ar- 
bitration, Venezuela. 

Argentine  Republic,  limitation  of 
armaments,  86. 

Armed  neutralities  of  1780  and  1800, 
21,  287,  312,  331. 

Armies,  Instructions  for  United 
States,  349  et  seq. 

Armistices.     <See  Flags  of  Truce. 

Army,  within  the  jurisdiction  of 
another  state,   144,  145. 

Asylum.     <See  Right  of  Asylum. 

Austria,  one  of  the  Great  Powers,  98; 
attitude  of,  at  the  Congress  of 
Troppau,  99;  relations  of,  to  the 
Triple  Alliance,  101;  convention  of, 
as  to  the  Suez  Canal,  119,  120;  juris- 
diction of,  over  foreign-bom  sub- 
jects, 131,  132. 

Auxiliary  navy,  267,  268. 

Ayala,  writer  on  International  Law, 
3,  31,  244. 

Balance  of  power  in  Europe,  81-83. 

Balloons,  launching  of  projectiles, 
etc.,  from,  264. 

Base  of  operations,  neutral  territory 
as,  297. 

Bays,  as  affecting  jurisdiction,  117; 
as  affecting  neutrality,  296,  297. 

Belgium,  recognition  of,  49,  53;  neu- 
tralization of,  58,  100,  214,  288; 
attitude  of  Great  Powers  as  to,  100; 
jurisdiction  of,  as  to  foreign-bom 
subjects,  132;  marriage,  133. 


492 


INDEX 


Belligerency,  recognition  of,  65-69. 

Belligerents,  non-hostile  relations  of, 
275  et  seq.;  carriage  of,  322. 

Bentham,  author,  8. 

Bering  Sea,  controversy  as  to,  122, 
124,  125. 

Berlin  Conference,  attitude  of,  as  to 
spheres  of  influence,  113. 

Berlin  Convention  of  1906  and  wire- 
less telegraphy,  129,  258. 

Berlin  Decree  of  Napoleon,  227,  331. 

Berlin,  treaties  of,  210. 

Bessarabia,  cession  of  a  portion  of,  110. 

Blockade,  in  case  of  United  States  of 
Colombia,  64;  pacific,  228,  230; 
visit  and  search  in  case  of,  326;  his- 
tory of,  330,  331;  conditions  of  ex- 
istence of,  331;  a  war  measure,  332; 
declaration  of,  332;  notification  of, 
332;  must  be  effective,  334;  cessa- 
tion of,  335;  violation  of,  335,  336; 
continuous  voyages  in  case  of,  336 
et  seq. 

Bluntschli,  writer  on  International 
Law,  93,  148. 

Bombardment,  264. 

Boniface  VIII,  Pope,  15. 

Booty,  251. 

Brazil,  belligerency  in  case  of,  65; 
neutrality  of,  302. 

Briefs  of  the  conversation,  176. 

British  Guiana,  boundary  line  of,  84. 

British  Orders  in  Council  of  1807,  227. 

British  South  Africa  Company,  his- 
tory of,  61,  62. 

Brunus,  writer  on  International 
Law,  3. 

Brussels  Conference,  210. 

Bulgaria,  recognition  of,  49. 

Bureau  of  Information,  275. 

Bynkershoek,  writer  on  International 
Law,  19,  33,  41,  121,  244,  291. 

Calvo,  writer  on  International  Law, 
34,  181,  214. 

Canada,  fisheries  of,  123,  125. 

Canals,  Suez,  119,  120;  Panama,  120; 
Corinth,  121;  Kiel,  121;  neutraliza- 
tion of,  289. 


Canning,  George,  on  the  neutrality 
of  the  United  States,  291,  292. 

Canon  law,  9,  15. 

Capitulation,  what  it  is,  279;  in  ex- 
cess of  authority,  279. 

Capture  and  ransom,  268. 

Capture  of  hostile  private  property, 
256,  268-271;  goods  as  determined 
by  ownership,  311  et  seq. 

Cartel  ship,  exemption  of,  from  cap- 
ture, 253;  defined,  276. 

Cartels,  what  they  are,  205,  274,  276. 

Catacazy,  minister  from  Russia,  179. 

Ceremonials,  inequalities  in,  98 ;  mari- 
time, 98. 

Cessation  of  hostilities,  275  et  seq.,  282. 

Cession,  as  a  means  of  acquiring  terri- 
tory, 110,  111;  of  jurisdiction,  111. 

Charges  d'affaires,  rules  as  to,  164, 
165. 

Charitable  institutions,  248. 

Chesapeake  and  Delaware  Bays,  jur- 
isdiction over,  117. 

Chile,  belligerency  in  case  of,  65;  con- 
vention with  Argentine  Republic  as 
to  armaments,  86;  right  of  asylum 
in,  185,  186. 

China,  payment  of  indemnity  by, 
64  n.;  international  law  as  applied 
to,  4,  5,  69,  70;  jurisdiction  of,  over 
aliens,  139,  140;  termination  of 
treaty  of,  with  Japan,  217;  treaty 
of  peace  of,  with  Japan,  283. 

Chivalry,  its  influence  on  Internation- 
al Law,  16. 

Churches.     See  Religion. 

Citizenship,  as  affected  by  naturali- 
zation, 133,  134. 

Civil  law.     See  Roman  Law. 

Civil  war,  intervention  in  case  of, 
93;  when  it  begins,  234. 

Classification  of  treaties,  214,  215. 

Clayton-Bulwer  Treaty,  as  to  th^e 
Panama  or  Nicaraguan  Canal,  120. 
Cleveland,  President,  attitude  of, 
as  to  United  States  of  Colombia, 
64,  65;  neutrality  proclamation  of, 
293  n. 
Coal,  when  not  to  be  supplied  to  bel- 


INDEX 


493 


ligerents,  300;  as  contraband  of  war, 
317;  auxiliary  ships  carrying,  322. 

Combatants,  who  are,  241-243. 

Commencement  of  war,  233-235. 

Commerce  and  sea  laws,  17. 

Commerce,  freedom  of,  28. 

Commissions  of  Inquiry,  222. 

Common  law,  10. 

"Compromis,"  206,  223,  225,  238. 

Condemnation  for  carrying  contra- 
band, 319. 

Conditionally  contraband,  what  arti- 
cles are,  317. 

Conference,  First  International  Peace, 
23,  24,  25;  Second,  26;  Third,  26. 

Conference  of  London  of  1871,  40. 

Conferences  and  congresses  as  a  means 
of  settling  disputes,  222,  223. 

Confiscation  of  property  in  war,  249. 

Congo  i^'ree  State.  jSee  Kongo  Free 
State. 

Congresses  of  American  states,  85. 

Conquest,  acquisition  of  title  bj',  109; 
termination  of  war  by,  281. 

Consolato  del  Mare.     See  Sea  Laws. 

Constitution  of  the  United  States  as 
to  ambassadors,  etc.,  38,  187;  citi- 
zens of  the  United  States,  132;  nat- 
uralization, 133,  134;  as  to  accept- 
ing presents,  etc.,  188;  treaties,  207. 

Consulates,  development  of,  18. 

Consuls,  establishment  of  office  of,  18; 
jurisdiction  of  Supreme  Court  as 
to,  38;  exemptions  of,  144;  courts  of, 
146-148;  historically  considered, 
189;  rank  of,  191,  192;  nomination 
of,  192;  functions  of,  193;  powers 
of,  in  Eastern  and  non-Christian 
states,  196;  privileges  and  immuni- 
ties of,  196-198;  vacating  the  office 
of,  198-199;  appointment  and  ex- 
amination of,  199. 

Continuous  voyages,  rule  as  to,  336- 
340. 

Contraband  of  war,  capture  of,  256, 
307;  what  is,  315-319;  penalty  for 
carrying,  319-321;  difference  be- 
tween, and  unneutral  service,  321- 
325;  visit  and  search  for,  325-329; 


rule  of,  in  case  of  convoy,  329 ;  rela- 
tions of,  to  blockade,  330-335;  vio- 
lation of  [blockade,  335,  336;  con- 
tinuous voyages,  336-340;  prize  and 
prize  courts,  341-345. 

Contract  debts,  confiscation  of,  284. 

Contributions,  what  they  are,  250. 

Convention  and  treaty,  difference  be- 
tween, 203.     See  Treaties. 

Conversion  of  merchantships  into  war 
ships,  267. 

Convoy,  vessels  under,  329,  330. 

Corporations,  status  of,  60-62. 

Correspondence,  diplomatic  and  con- 
sular, 323. 

Courts  of  admiralty,  36;  prize,  36, 
341,  345;  of  arbitration,  25,  38,  39. 

Crete,  pacific  blockade  of,  228. 

Crew  of  merchant  vessels,  status  of, 
241-243. 

Crimes,  jurisdiction  of  consular  courts 
as  to,  146-148;  extradition  for,  148- 
152. 

Crusades,  influence  of,  16,  18. 

Cuba,  intervention  in  case  of,  92. 

Custom,  practice  and  usage,  36. 

Customs  of  Amsterdam.  See  Sea 
Laws. 

Dana,  writer  on  International  Law, 
126,  342. 

Death  of  diplomatic  agent,  proceed- 
ings in  case  of,  178. 

Debts,  law  as  to,  in  time  of  war,  284. 

Deceit  involving  perfidy,  263,  264. 

Declaration  of  blockade,  331,  332. 

Declaration  of  London,  1909,  27,  255, 
256;  in  regard  to  determining  na- 
tionality of  a  vessel,  314 ;  and  contra- 
band, 318-319;  provision  in  regard 
to  hostile  destination  of  contraband, 
319-320;  provision  for  cases  in 
which  only  part  of  cargo  is  contra- 
band, 321 ;  in  regard  to  the  carriage 
of  belligerent  persons,  324;  and 
penalties  for  unneutral  service,  324 ; 
concerning  destruction  of  neutral 
prizes,  328;  inserts  guarantee  for 
legitimate  exercise  of  convoy,  330; 


494 


INDEX 


concerning  declaration  of  blockade, 
332;  concerning  notification  of 
blockade,  333;  concerning  cessation 
of  blockade,  334;  concerning  vio- 
lation of  blockade,  335;  rules  of, 
concerning  the  doctrine  of  con- 
tinuous voyages,  340;  concluded, 
345. 

Declaration  of  Paris,  agreed  to  by 
the  United  States,  40;  provisions 
of,  256,  266,  267,  314,  315,  331; 
form  of,  256. 

Declaration  of  war,  235,  236. 

Declarations,  defined,  204,  215. 

Definition  of  international  law,  3 ;  of  a 
state,  45;  of  neutralized  states,  58; 
of  corporations,  60;  insurgents,  63; 
belligerents,  65;  jurisdiction,  107; 
territorial  domain,  etc.,  107;  pre- 
scription, 111;  nationality,  130; 
diplomacy,  161;  treaties,  203;  non- 
hostile  redress,  225;  retorsion,  226; 
reprisals,  226;  embargo,  227;  pa- 
cific blockade,  228;  war,  235;  con- 
tributions, 250;  requisitions,  250; 
booty,  251;  belligerent  occupation, 
261;  prisoners  of  war,  273;  cartel, 
276;  cartel  ship,  276;  license  to 
trade,  277;  capitulation,  279;  neu- 
trality, 287;  neutralization,  287; 
contraband  of  war,  315;  unneutral 
service,  321;  convoy,  329;  block- 
ade, 330;  prize,  341. 

de  Lesseps,  119. 

de  Martens,  G.  F.,  writer,  34,  93, 
148. 

Denmark,  intervention  in  affairs  of, 
88;  jurisdiction  of,  over  Danish 
Sound  and  Two  Belts,  118. 

Denunciation  of  treaties,  217-219. 

Destruction  of  prize,  270,  328. 

Devastation  forbidden  in  war,  265. 

Diplomatic  agents,  exemptions  of, 
144;  laws  as  to,  157-199. 

Diplomatic  negotiation  as  a  means 
of  settling  disputes,  221. 

Diplomatic  papers.     See  State  Papers. 

Diplomatic  relations,  breaking  off  of, 
178-180. 


Discovery,  a  method  of  acquiring  ter- 
ritory, 108. 

Discovery  of  America,  18. 

Disputes,  amicable  settlement  of, 
30,  221-225;  reservation  of  the 
United  States  as  to,  42  n.,  83. 

Dogger  Banks  affair,  222. 

Domicile,  papers  proving,  136. 

"Doyen"  of  the  "Diplomatic  Corps,'? 
165. 

Draft  of  treaties,  207. 

Drago  Doctrine,  238  n. 

"Due  diligence,"  in  the  Alabama 
case,  307, 

Eastern  and  non-Christian  states, 
powers  of  consuls  in,  196. 

East  India  Company,  powers  of,  61. 

Educational  institutions,  exemption 
of,  247,  248. 

Egypt,  relations  of,  to  Great  Powers, 
100;  mixed  courts  of,  148. 

Embargo,  defined,  227. 

Enemy  merchant  ships,  status  of,  227 ; 
Hague  Convention  as  to,  254. 

"Enemy's  ships,  enemy's  goods," 
doctrine  of,  21,  312. 

Enemy  subjects,  status  of,  244,  245. 

English  orders  in  council  of  1806  and 
1807,  331. 

Enlistment  of  troops  for  belligerent 
service,  305. 

Envoys.  See  Ambassadors,  Diplo- 
matic Agents. 

Equality  of  states,  74,  97-101. 

Equity,  a  basis  of  international  law, 
10. 

Estuaries,  as  affecting  jurisdiction, 
117. 

Exchange,  as  a  means  of  acquiring 
territory,  110;  of  prisoners  of  war, 
274-276. 

Exequatur,  form  of,  193;  what  it  re- 
lates to,  192  et  seq. 

Exploration,  exemption  of  vessels  en- 
gaged in,  253. 

Exterritoriality,  what  it  is,  141,  142, 
182. 

Extradition,  law  as  to,  148-152. 


INDEX 


495 


False  colors,  use  of,  264. 

"Favored  nation."  See  "Most  Fa- 
vored Nation." 

Feudalism,  influence  of,  16,  19. 

Financial  transactions,  intervention 
on  the  ground  of,  94. 

Fiore,  writer  on  International  Law, 
93,  148. 

Fisheries,  on  the  high  seas,  122;  Ca- 
nadian, 123,  124;  Bering  Sea,  124, 
125. 

Fishing  vessels,  exemption  of,  from 
capture,  253. 

Flags  of  truce,  use  of,  264,  275,  276, 
278,  279,  282. 

Foelix,  writer,  148. 

Foraging,  when  may  be  resorted  to, 
251. 

Forbidden  methods  in  war,  263-265. 

Foreign-born  subjects,  jurisdiction 
over,  131-133. 

Foreign  Enlistment  Act  of  Great 
Britain,  292. 

France,  recognition  of  republic  of, 
50-52;  relation  of,  to  balance  of 
power,  91 ;  one  of  the  Great  Powers, 
98;  friendship  of,  with  Russia,  101; 
sale  of  territory  to,  by  Monaco, 
111;  by  Sweden,  111;  partition  of 
Africa  by,  100,  112-114;  jurisdic- 
tion of,  over  certain  gulfs,  117; 
treaty  of,  with  England  as  to  en- 
closed waters,  117;  convention  of, 
as  to  the  Suez  Canal,  119,  120; 
jurisdiction  over  foreign  merchant- 
men within  her  ports,  128,  129;  as 
to  foreign-born  subjects,  132;  mar- 
riage, 133;  naturalization,  135;  sale 
of  forests  of,  by  Prussians,  272; 
termination  of  wars  of,  282;  rela- 
tions of,  to  neutrality  and  neutral- 
ization, 290-292;  citizens  of,  on 
expedition  during  Franco-German 
War,  298;  views  of,  as  to  horses  as 
contraband,  317. 

Freedom  of  commerce  and  naviga- 
tion, 28. 

"Free  ships,  free  goods,"  doctrine  of, 
256,  287,  312  et  seq. 


Gallatin,  Minister,  liability  of  serv- 
ant of,  to  local  jurisdiction,  184, 
185. 

Garfield,  President,  testimony  of  for- 
eign minister  at  trial  of  assassin  of, 
184. 

Genet,  M.,  action  of,  as  to  privateers 
in  the  United  States,  291;  consular 
prize  courts  of,  341. 

Geneva  Arbitration,  treaty  as  to, 
208,  209;  the  Alabama  case  at  the, 
307. 

Geneva  Convention,  revision  of  pro- 
visions of,  25,  26;  as  laying  down 
new  rules,  39;  sick  and  wounded 
under,  274,  289;  of  1906,  289. 

Gentilis,  writer  on  International  Law, 
3,  31,  32,  233,  290,  315. 

Germany,  Confederation,  57;  dififer- 
ence  of,  with  Venezuela,  85;  one  of 
the  Great  Powers,  98;  a  party  to 
the  Triple  Alliance,  101;  partition 
of  Africa  by,  113;  convention  of, 
as  to  the  Suez  Canal,  119,  120;  juris- 
diction of,  over  foreign-bom  sub- 
jects, 131,  133;  over  subjects  resid- 
ing abroad,  133;  citizens  of,  in 
China,  139;  volunteer  navy  of,  266, 
267;  sale  of  French  forests  by,  272; 
attitude  of,  as  to  neutrality,  292; 
law  of,  as  to  prize  money,  344. 

Gift,  as  a  means  of  acquiring  terri- 
tory, 110. 

Good  oflices,  settlement  of  disputes 
by  resorting  to,  221. 

Government  of  armies  of  United 
States,  349  et  seq. 

Grant,  President,  recognition  of 
France  by,  51;  proclamation  of, 
as  to  belligerent  vessels  leaving 
United  States  ports,  301,  302. 

Great  Britain,  diplomatic  papers  of, 
42;  protectorates  of,  59;  power  of, 
over  various  companies,  60-62; 
recognition  of  belligerency  by,  66; 
relations  of,  to  treaty  of  Utrecht, 
82;  difference  of,  with  Venezuela, 
85;  intervention  of,  in  affairs  of 
Denmark,  88;  relation  of,  to  bal- 


496 


INDEX 


ance  of  power,  91 ;  one  of  the  Great 
Powers,  98;  attitude  of,  at  the 
congress  of  Troppau,  99;  Verona, 
99;  cession  of  "Horse-shoe  Reef" 
by,  to  United  States,  110;  sale  of 
territory  to,  by  Netherlands,  111; 
partition  of  Africa  by,  113;  treaty 
of,  with  France  as  to  enclosed 
waters,  117;  convention  of,  as  to 
the  Suez  Canal,  119, 120;  attitude  of, 
as  to  the  three-mile  limit,  121,  122; 
treaties  of,  as  to  Canadian  fisher- 
ies, 122-125;  Bering  Sea,  124,  125; 
territorial  waters  jurisdiction  act  of, 
128;  jurisdiction  of,  over  foreign- 
bom  subjects,  132;  attitude  of,  as 
to  naturalization,  135;  jurisdiction 
of,  over  aliens,  138;  immunities  of 
diplomatic  agents  of,  184;  protec- 
torate of,  over  Ionian  Islands,  217; 
war  of,  with  the  Transvaal,  234; 
volunteer  navy  of,  267;  guaranty 
of,  as  to  Suez  Canal,  289;  neutrality 
laws  of,  292,  293 ;  attitude  of,  as  to 
Terceira  affair,  297,  298;  Alabama 
case,  307;  contraband,  318;  convoy, 
329;  blockade,  331  et  seq.;  contin- 
uous voyages,  336-340;  law  of,  as  to 
prize  money,  344. 

Great  Lakes,  regarded  as  "high  seas," 
117. 

Great  Powers,  enumeration  of,  98; 
policy  of,  98-101. 

Greece,  in  early  international  law, 
13;  recognition  of,  49;  interven- 
tion in  affairs  of,  92,  214;  attitude 
of  Great  Powers  as  to,  99,  100,  289; 
recall  of  citizens  by,  138;  pacific 
blockade  of,  228;  volunteer  navy 
of,  267. 

Gregory  IX,  relations  of,  to  canon 
law,  9,  15. 

Grotius,  Hugo,  writer,  3,  19,  31,  32, 
41,  215,  244,  315,  316. 

Guaranty,  treaties  of,  214;  as  to 
canals,  289. 

Guerrilla  troops,  status  of,  243. 

Guidon  de  la  Mar.     See  Sea  Laws. 

Gulfs,  as  affecting  jurisdiction,  117. 


Hague  Conference,  First,  24-27,  238. 
Hague  Conference,  Second,  rules  in 
regard  to  commencement  of  war, 
234,  235 ;  convention  of,  in  regard  to 
the  laws  and  customs  of  war,  238; 
provisions  of,  in  regard  to  public 
property  of  the  enemy,  247;  in  re- 
gard to  personal  property  of  enemy 
subjects,  249;  in  regard  to  enemy 
merchant  ships,  254 ;  relative  to  sub- 
marine cables,  258 ;  relative  to  wire- 
less telegraphy,  259;  relative  to 
belligerent  occupation,  261;  forbid- 
ding laying  of  contact  mines,  265; 
provisions  as  to  exemption  of  pri- 
vate property  at  sea,  269;  flag  of 
truce,  275;  in  regard  to  neutral  ter- 
ritorial jurisdiction,  295;  in  regard 
to  regulations  by  a  neutral  for  bel- 
ligerent ships,  297 ;  provisions  for  in- 
ternment in  a  neutral  port,  299-300; 
regulations  concerning  ordinary  en- 
try of  belligerent  vessels,  300;  in 
regard  to  vessels  with  prize,  303;  in 
regard  to  supplying  and  fitting  out 
belligerent  vessels,  307;  and  list  of 
absolute  contraband,  318;  concern- 
ing inviolability  of  postal  corre- 
spondence, 327;  the  International 
Prize  Court,  344,  345. 

Hall,  William  Edward,  writer,  28,  34, 
87,  142,  156,  182,  195,  278,  298,  304. 

Hanseatic  League,  treaty  of,  as  to 
tolls,  118.     See  Sea  Laws. 

Harbors,  neutrality  of,  296,  297. 

Harcourt,  Sir  W.,  writer,  89. 

Hay-Pauncefote  Treaty,  120. 

Heffter,  writer,  93. 

"Hinteriand  Doctrine,"  109,  114. 

Historical  collections,  exemption  of, 
255,  256. 

Holy  Alliance,  relations  of,  to  Monroe 
Doctrine,  83;  to  intervention,  92; 
opposition  of,  to  popular  liberty,  99. 

Horses,  as  contraband  of  war,  317. 

Hospital  flag,  use  of,  264. 

Hospital  ships,  253,  290. 

Hostages,  when  last  given,  9  n.;  in 
case  of  ransom,  270. 


INDEX 


497 


Hostile  destination  for  contraband, 
319. 

Hostile  vessels,  departure  of,  from 
neutral  port,  300. 

Hostilities,  commencement  of,  233  et 
seq.;  participation  in,  322. 

Himianity,  intervention  on  the 
ground  of,  91-93. 

Hungary,  jurisdiction  of,  over  for- 
eign-born subjects,  131,  132. 

Immunities  and  privileges  of  diplo- 
matic agents,  180  et  seq.;  of  consuls, 
189-199. 

Independence  of  states,  81  et  seq. 

Indians,  suzerainty  of  United  States 
over,  60;  extinguishment  of  title  of, 
109. 

Individuals  under  international  law, 
62. 

Inequalities  among  states,  court  prec- 
edence, 98;  matters  of  ceremonial, 
98;  weight  of  influence,  98  et  seq. 

Institute  of  international  law,  as  to 
marine  jurisdiction,  122;  pacific 
blockade,  228. 

Instructions  for  United  States  Armies, 
30,  349  et  seq.;  to  diplomatic  agents, 
169,  206. 

Insurgents,  who  are,  63-65. 

Intelligence,  transmission  of,  322. 

Intercourse  of  states,  75. 

International  Commission  of  Inquiry, 
222. 

International  law,  definition  and 
general  scope  of,  3-5;  nature  of, 
6-11;  historical  development  of, 
in  early  period,  13,  14;  in  middle 
period,  15-19;  in  modem  period, 
19-27;  influence  of  United  States, 
27-31;  writers,  31-34;  sources  of, 
practice  and  usage,  36;  precedent 
and  decisions,  36 ;  treaties  and  state 
papers,  39,  40;  text  writers,  40-42; 
diplomatic  papers,  42;  states,  defi- 
nition, 45;  nature,  45,  46;  recogni- 
tion of  new,  47-54;  legal  persons 
having  qualified  status,  members  of 
confederations,  etc.,  57,  58;  neutral- 


ized states,  58 ;  protectorates,  suze- 
rainties, etc.,   58-60;    corporations, 
60-62;  individuals,   62;  insurgents, 
63-65;    belligerents,    65-69;    com- 
munities not  fully  civilized,  69,  70; 
general    rights    and    obligations    of 
states,  existence,  73;  independence, 
73,    74;   equality,    74;   jurisdiction, 
74;   property,    75;   intercourse,    75; 
existence,  application  of  the  right, 
77,    78;   extension   of   the   right   to 
subjects,     78,     79;     independence, 
manner  of  exercise,  81 ;  balance  of 
power,  81-83;  Monroe  Doctrine,  83 
et  seq.;  non-intervention,  87;  prac- 
tice as  to  intervention,  88  et  seq.; 
equality,  in  general,  97 ;  inequalities, 
97-101 ;  jurisdiction,  in  general,  107; 
domain,    107,    108;   method   of  ac- 
quisition,   108-112;   qualified,   112- 
114;    maritime    and    fluvial,     114; 
rivers,  114-116;  navigation  of  riv- 
ers,   116,     117;     enclosed    waters, 
117,  121;  the  three-mile  limit,  121, 
122;  fisheries,  122-125;  vessels,  125- 
129;   aerial   jurisdiction,    129;   per- 
sonal,    general — nationality,     130; 
natural-bom  subjects,  131;  foreign- 
bom    subjects,    131-133;    acquired 
nationality,  131  et  seq.;  jurisdiction 
over   aliens,    138-140;    exemptions 
from  jurisdiction,   141,   142;  sover- 
eigns,  142,   143;  state  officers  and 
property,   144-146;  special  exemp- 
tions,  146-148;  extradition,   148  et 
seq.;  servitudes,  152,  153;  property 
in  general,   155;  of  the  state,   156; 
diplomacy   and   international    rela- 
tions in  time  of  peace,  general  de- 
velopment, 159;  diplomatic  agents, 
160  et  seq.;  suite,  166 ;  who  may  send 
diplomatic   agents,    167;   who   may 
be   sent,    168;   credentials,    instruc- 
tions,   passport,    169-171;    ceremo- 
nial, 171-175;  functions,   176,   177; 
termination    of    mission,    178-180; 
immunities   and   privileges,    180   et 
seq.;    diplomatic    practice    of    the 
United    States,    187-189;    consuls, 


498 


INDEX 


189-200;  treaties,  definition,  203; 
other  forms  of  international  agree- 
ments, 203-206;  negotiation  of, 
206-213;  validity  of,  213;  classifica- 
tion of,  214,  215;  interpretation  of, 
215-217;  termination  of,  217-219; 
amicable  settlement  of  disputes, 
221  et  seq.;  non-hostile  redress,  225; 
retorsion,  226;  reprisals,  226;  em- 
bargo, 227;  pacific  blockade,  228- 
230;  war,  definition,  233;  com- 
mencement, 233;  declaration,  235; 
object,  236,  237;  general  effects, 
238 ;  status  of  persons  in  war,  per- 
sons affected  by  war,  241;  com- 
batants, 241-243;  non-combatants, 
243-245;  status  of  property  on 
land,  public  property  of  the 
enemy,  247,  248;  real  property 
of  enemy  subjects,  248;  personal 
property  of  enemy  subjects,  249- 
251 ;  status  of  property  at  sea, 
vessels,  253-255;  goods,  255,  256; 
submarine  telegraphic  cables,  256- 
258;  wireless  telegraphy,  258-259; 
conduct  of  hostilities,  bellig- 
erent occupation,  261-263;  forbid- 
den methods,  263-265;  privateers, 
265,  266;  volunteer  and  auxiliary 
navy,  266,  268;  capture  and  ran- 
som, 268-271 ;  postliminium,  271, 
272;  prisoners  and  their  treatment, 
273,  275;  non-hostile  relations  of 
belligerents,  275-279;  termination 
of  war,  methods  of,  281 ;  by  con- 
quest, 281 ;  by  cessation  of  hos- 
tilities, 282;  treaty  of  peace,  282- 
284;  definition  of  neutrality,  287; 
forms  of  neutrality  and  of  neutral- 
ization, 287-290;  history,  290-292; 
declaration,  292,  293;  divisions, 
293;  relations  of  neutral  states  and 
belligerent  states,  general  principles 
of  the  relations  between  states, 
295;  neutral  territorial  jurisdiction, 
295-298;  regulations  of  neutral  re- 
lations, 298-303;  no  direct  assist- 
ance by  neutral,  304,  305;  positive 
obligations  of  a  neutral  state,  306- 


308;  neutral  relations  between 
states  and  individuals,  311-315; 
contraband,  315-319;  penalty  for 
carrying  contraband,  319-321;  un- 
neutral service,  321-325;  visit  and 
search,  325-329;  convoy,  329,  330; 
blockade,  330-335;  violation  of 
blockade,  335-336;  continuous  voy- 
ages, 336-340;  prize  and  prize 
courts,  341-345. 

Internment  of  belligerent  troops, 
274,  295,  296,  299. 

Interpretation  of  treaties,  215-217. 

Intervention  in  affairs  of  other  na- 
tions, 81-95. 

Ionian  Islands,  protectorate  of,  22, 
217. 

Islands,  title  to,  when  formed  in 
rivers,  112. 

Isolation  of  the  United  States,  effect 
of,  49. 

Italy,  attitude  toward  the  United 
States  on  question  of  sovereign  po- 
litical unity,  78;  one  of  the  Great 
Powers,  98 ;  relation  of,  to  the  Triple 
Alliance,  101 ;  partition  of  Africa  by, 
113;  convention  of,  as  to  the  Suez 
Canal,  119-120. 

Jackson,  President,  attitude  of,  as  to 
the  Falkland  Islands,  51. 

Japan,  recognition  of,  48;  jurisdiction 
of,  over  aliens,  139;  freedom  of 
Emperor  of,  from  suit,  143;  treaty 
of  United  States  with,  as  to  csnsu- 
lar  functions,  196;  termination  of 
treaty  of,  with  China,  217;  prize 
law  of,  254,  327;  treaty  of  peace  of, 
with  China,  283;  attitude  of,  as  to 
convoy,  329. 

Jettison  of  cargo,  13. 

Jurisdiction  of  states,  74,  107  et  seq.; 
of  diplomatic  agents,  180  et  seq.; 
of  consuls,  189-199;  over  non-com- 
batants, 243;  neutral  territorial, 
295;  in  case  of  blockade,  330-335; 
as  to  prize  courts,  341.  See  Inter- 
national Law. 

Jus  belli,  early  international  law,  13. 


INDEX 


499 


Jus  fetiale,  defined,  8,  13. 
Jus  gentium,  defined,  8,  14. 
Jus  inter  gentes,  defined,  8. 
Jus  naturale,  defined,  7. 
Justinian,  writer,  7. 

Keily,  Mr.,  case  of,  168. 

Kent,  writer,  148,  266. 

Kliiber,  writer,  148. 

Kongo  Free  State,  recognition  of,  49; 

neutralization  of,  58. 
Koszta,  case  of,  136-137. 

Lakes,  change  in,  as  affecting  terri- 
tory, 117. 

Language  used  in  treaties,  209,  210; 
in    diplomacy,  176  n. 

Law  of  nations,  term  long  used,  8. 

Lawrence,  writer,  61,  91. 

Laws  of  Antwerp.     See  Sea  Laws. 

Laws  of  Oleron.     See  Sea  Laws. 

Laws  of  the  Rhodians,  fragment  of, 
13.     See  Sea  Laws. 

Legates,  rules  as  to,  159  et  seq.  See 
Ambassadors,  Diplomatic  Agents. 

Letter  of  credence,  form  of,  171. 

Letters,  in  diplomatic  relations,  204- 
205. 

Letters  of  marque.  See  Privateer- 
ing. 

Levies  en  masse,  as  combatants,  242, 
273. 

Liberia,  recognition  of,  49. 

Licenses  to  trade,  277,  278. 

Lieber,  Dr.,  writer,  7,  30. 

Lien,  right  of  state  to  enforce,  108. 

Lima,  Congress  of  1847,  85. 

Limitation  of  armaments  in  South 
America,  86. 

Lincoln,  President,  proclamation  of, 
as  to  blockade,  234,  235,  333  n. 

Loans  of  money,  by  neutral  to  bellig- 
erent state,  305;  by  citizens  of  a 
neutral  state,  305. 

London,  Declaration  of,  1909,  27; 
naval  conference,  1908-1909,  256, 
268. 

Luxemburg,  neutralization  of,  58, 
288. 


Madagascar,  protectorate  of,  59. 

Mails  and  mail  steamers,  under  neu- 
tral flag,  322,  323. 

Marcy,  Secretary,  as  to  naturaliza- 
tion, 136. 

Mare  clausum,  rule  of,  as  to  Bering 
Sea,  124. 

Marine  League .    See  Three-mile  Limit. 

Maritime  ceremonials,  in  salutes,  98. 

Maritime  war.     See  Neutrality. 

Marriage,  as  affecting  nationality,  133; 
performed  by  diplomatic  agent,  177. 

McKinley,  President,  message  of,  as 
to  Cuba,  92 ;  proclamation  of,  as  to 
blockade,  333  n. 

Mediation.     See  Good  Offices. 

Memoranda,  what  they  are,  176,  177, 
204. 

Messages,  transmission  of,  324. 

Milan  Decree  of  Napoleon,  331. 

Military  assistance  not  to  be  fur- 
nished by  neutral  to  belligerent,  304. 

Mines,  automatic  contact,  265. 

Ministers,  jurisdiction  of  Supreme 
Court  as  to,  38.  See  Ambassadors, 
Diplomatic  Agents. 

Mississippi  River,  navigation  of,  28. 

Money,  as  contraband  of  war,  317. 

Monroe  Doctrine,  history  of,  83  et  seq.; 
position  of  United  States  as  to,  101. 

Monroe,  President,  author  of  Monroe 
Doctrine,  83. 

Montenegro,  recognition  of,  49. 

Moser,  writer,  33,  41. 

"Most  favored  nation,"  what  it 
means  in  treaties,  216. 

Munitions  of  war,  sales  of,  by  neutral, 
304.     See  Supplies  of  War. 

Napoleon  Bonaparte,  relation  of,  to 
Monroe  Doctrine,  83;  sale  of  Louis- 
iana by,  111;  Berlin  Decree  of,  227, 
331 ;  Milan  Decree  of,  331. 

National  Prize  Court,  341. 

Nationals  defined,  130,  264. 

Natural-born  subjects,  jurisdiction 
over,  131. 

Naturalization,  law  as  to,  133  et  seq. 

Naval   Conference   of   London,    1908, 


500 


INDEX 


International,  27.     See  Declaration 
of  London. 

Naval  war  code  of  the  United  States, 
322. 

Navigation  of  rivers,  28,  116,  117. 

Navy,  exemption  of,  from  local  juris- 
diction, 145. 

Netherlands,  sale  of  territory  by,  to 
Great  Britain,  111;  convention  of, 
as  to  Suez  Canal,  120. 

Neutral  flag,  transfer  of  enemy  vessel 
to,  255. 

Neutral  goods,  capture  of,  256,  311 
et  seq. 

Neutrality,  regulations  of  1793  in 
regard  to,  28;  proclamation  of,  66; 
of  goods,  255,  256 ;  submarine  tele- 
graphic cables,  256  et  seq.;  definition 
and  history  of,  287-293;  laws  of 
United  States  as  to,  291,  292,  306; 
of  nations  during  war  between  Spain 
and  the  United  States,  292;  as  to 
departure  of  hostile  vessels  from 
neutral  ports,  300-302;  British  reg- 
ulations as  to,  301  n.;  as  to  direct 
assistance,  304,  305;  obligations  of 
state,  306-308;  ordinary  commerce 
in  case  of,  311-315;  contraband  in 
case  of,  315-319;  unneutral  service 
in  case  of,  321-325;  visit  and  search 
in  case  of,  325-329;  convoy  in  case 
of,  329,  330;  blockade,  330-335; 
violation  of  blockade,  335,  336; 
continuous  voyages,  339,  340;  prize 
and  prize  courts,  341,  345. 

Neutralization  of  states,  58;  forms  of, 
287-290. 

Noncombatants,  who  are,  243-245. 

Non-hostile  redress,  what  is,  225. 

North  Sea  fisheries,  convention  as  to, 
122. 

Norway,  dissolution  of,  from  Sweden, 
49;  union  of,  with  Sweden,  58; 
protectorate  over,  59. 

Notes,  what  they  are,  177,  204,  205. 

Notification  of  blockade,  332,  333; 
of  war,  235. 

Nuncios,  rules  as  to,  163  et  seq.  See 
Ambassadors,  Diplomatic  Agents. 


Object  of  war,  236-238. 

Occupation,  a  method  of  acquiring 
territory,  108-110;  belligerent,  249- 
251. 

Officers  of  merchant  vessels,  status 
of,  242. 

01(§ron,  laws  of.     See  Sea  Laws. 

"Open  door"  policy  in  the  Far  East, 
29. 

Oriental  states,  exemption  of  sub- 
jects of  Western  states  in,  146-148. 

Oscar,  King,  address  of,  to  Swedish 
Riksdag,  49. 

Pacific  blockade,  what  it  is,  228-230. 

Panama,  protectorate  of,  59;  canal 
route,  neutralization  of,  289. 

Pan-American  Conference  of  1889, 
223. 

Pan-American  Conferences,  1889, 
1901-02,  1906,  86;  Scientific  Con- 
gress, 86. 

Paris,  Treaty  of.     See  Treaty  of  Paris. 

Parole,  release  on,  274. 

Passengers,  capture  of,  269. 

Passport,  form  of,  141;  of  diplomatic 
agent,  170,  179;  given  in  time  of 
war,  276. 

Peace  of  Westphalia,  as  an  epoch  in 
international  law,  19;  relation  of,  to 
the  balance  of  power,  82;  recog- 
nition of  diplomacy  by,  162;  pre- 
ceded by  armistice,  282. 

Perdicaris  and  Raisuli,  29. 

Perfidy.     See  Deceit.  "^ 

Permanent  Court  of  Arbitration,  224. 

Personal  property,  status  of,  in  war, 
255,  256. 

Persons,  jurisdiction  over,  130;  sta- 
tus of,  in  war,  241. 

Philippines,  sale  of,  to  the  United 
States,  111. 

Phillimore,  writer,  34,  148. 

Pillage,  prohibition  of,  249. 

Pius  Fund  arbitration,  224. 

Poison,  use  of,  forbidden  in  war,  263. 

Poland,  partition  of,  21,  82,  111. 

Political  refugees.  See  Right  of  Asy- 
lum. 


INDEX 


501 


Ports,  neutrality  of,  296,  297. 

Portugal,  partition  of  Africa  by,  113; 
jurisdiction  of,  as  to  foreign-bom 
subjects,  132;  relations  of,  to  Ter- 
ceira  affair,  297. 

Postal  communication,  cartels  as  to, 
276 ;  correspondence,  inviolability 
of,  328. 

Postliminium,  what  it  is,  271. 

Pradier-Fod6r^,  writer,  34. 

Preemption  of  contraband,  320. 

Prescription,  acquisition  of  territory 
by,  111. 

Prestation.     See  Angary. 

Prisoners  of  war,  treatment  of,  273- 
278;  exchange  of,  274;  when  must 
be  restored,  274 ;  treaties  as  to,  283. 

Privateering,  history  of,  265,  266;  ac- 
tion (jf,  M.  Genet  as  to,  291. 

Private  international  law,  of  what  it 
treats,  4,  130,  152. 

Private  property  of  enemy,  capture 
of,  at  sea,  30,  256,  269,  311  et  seq.; 
inviolability  of,  on  land,  262. 

Private  vessels,  liability  of,  to  cap- 
ture, 253;  exemption  of,  253. 

Prize,  courts  of,  26,  37  et  seq.;  dispo- 
sition of,  270;  salvage  in  case  of, 
272;  taking  of,  into  neutral  waters, 
302,  303;  attitude  of  Japan  as  to, 
329;  law  of,  341-34.5. 

Prize  law  of  Japan,  254,  255.  See 
Prize. 

Proc'es-verhaux.     See  Protocol. 

Proclamation  of  the  United  States 
as  to  the  Declaration  of  Paris,  40; 
of  Queen  Victoria  as  to  belliger- 
ency, 66;  of  treaties,  212,  213;  of  the 
United  States  as  to  war  with  Spain, 
227;  of  blockade,  233,  234;  of  Presi- 
dent Washington,  as  to  neutrality, 
292 ;  of  nations  during  war  between 
Spain  and  the  United  States,  292, 
293,  297;  as  to  departure  of  bel- 
ligerents on  vessels  from  port,  298 
et  seq. 

Projectiles,  inflicting  unnecessary  suf- 
fering, 263;  from  balloons,  264. 

Promulgation  of  treaty,  212,  213. 


Property,  in  general,  155;  of  the  state, 

156;  of  the  enemy,  status  of,  249, 

251 ;  at  sea,  status  of,  253  et  seq. 
Protectorates,    states    imder,    58-60; 

jurisdiction   in    case   of,    112,    113; 

spheres  of  influence,  113,  114. 
Protocol,   what   it  is,    177,   204,   207, 

212,  215,  218,  283. 
Provisions,  when  may  be  supplied  to 

belligerents,  300;  as  contraband  of 

war,  317. 
Prussia,  attitude  of,  at  the  Congress 

of  Troppau,  99.     See  Germany. 
Public    buildings,    protection    of,    in 

war,  247  et  seq. 
Public  debt,  stock  held  by  enemy  in, 

250. 
Public  international  law,  of  what  it 

treats,  4. 
Public  vessels,  liability  of,  to  capture, 

253-255. 
Pufendorf,  writer,  3,  33,  148,  291. 

Quarter,  refusal  of,  263,  273. 

Rachel,  writer,  33. 
Radiotelegraphic  Convention,  39. 
Railway  plant,  status  of,  in  war,  247, 

262. 
Ransom,  268. 

Ratification  of  treaties,  210-212. 
Real  property,  status  of,  in  war,  248. 
Rebellion,  intervention  in  case  of,  92, 

93. 
Recognition,  of  new  states,  47  et  seq.; 

of  belligerency,  65  et  seq. 
Reddaway,  writer,  84. 
Religion,  protection  of,  186,  247  et  seq. 
Repair,  hostile  character  of  ships  of, 

324. 
Reprisals,  defined,  226. 
Requisitions,  what  they  are,  250,  251. 
Retaliation,    liability    to,    273;    when 

forbidden,  265. 
Retorsion,  defined,  226. 
Right  of  asylum,  on  and  for  war  ships, 

127,  145,  146,  297,  299;  sovereign's 

hotel,   144;   in  house  of  diplomatic 

agent,  185,  186.     See  Internment. 


502 


INDEX 


Rivers,  in  determining  territory,  115; 
as  affecting  jurisdiction,  116. 

Roman  law,  a  basis  of  international 
law,  9,  14,  15;  as  to  alluvimn,  112. 

Rouxnania,  recognition  of,  49;  cession 
of  Bessarabia  and  a  part  of  Turkey 
to,  110. 

Russia,  call  of,  as  to  First  Internation- 
al Peace  Conference,  23;  suzerainty 
of,  60;  relation  of,  to  the  balance  of 
power,  91 ;  one  of  the  Great  Powers, 
98;  attitude  of,  at  the  Congress  of 
Troppau,  99;  friendship  of,  with 
France,  101;  sale  of  Alaska  by.  111; 
treaty  of,  with  Turkey  as  to  Bospho- 
rus,  etc.,  119;  convention  of,  as  to 
the  Suez  Canal,  119,  120;  claim  of, 
as  to  Pacific  Ocean,  124;  volunteer 
navy  of,  267;  attitude  of,  toward 
wireless  telegraphy,  258. 

Russo-Japanese  War,  222,  234,  258, 
268,  283,  300,  327. 

Safe-conduct,  what  it  is,  276. 

Safeguard,  what  it  is,  276. 

Sale,  transfer  of  territory  by,  110,  111. 

Salutes,  175. 

Salvage,  granting  of,  271,  272. 

Samoa,  60. 

Scientific  property  work,  exemption  of, 
247,  248;  work,  vessels  engaged  in, 
253. 

Sea  laws,  Amalfitan  tables,  17,  190; 
Consolato  del  Mare,  17,  190,  312; 
laws  of  Oldron,  17,  190;  laws  of 
Wisby,  17,  190;  Hanseatic  League, 
17,  35,  190;  customs  of  Amsterdam, 
18;  laws  of  Antwerp,  18;  Guidon  de 
la  Mar,  18;  Lex  Rhodia,  17,  190. 

Search.     See  Visit  and  Search. 

Seizure.     See  Visit  and  Search. 

Selden,  writer,  19. 

Self-preservation,  intervention  for,  88. 

Servia,  recognition  of,  49. 

Servitudes,  in  case  of  Canadian  fish- 
eries, 123;  different  kinds  of,  152, 
153. 

Ship's  papers,  deposit  of,  in  consul's 
office,  194;  what  are  required,  326. 


Sick  and  wounded,  treatment  of,  274, 
289,  290. 

Sound  dues,  history  of,  28,  29,  118. 

South  African  Republic,  protectorate 
of,  61 ;  war  in,  234,  339. 

South  American  states,  policies  of,  85, 
86;  husbands  in,  acquiring  citizen- 
ship of  wife,  133;  views  of,  as  to 
extradition,  149. 

Sovereign,  exemptions  and  privileges 
of,  in  foreign  countries,  142,  143. 

Spain,  relations  of,  to  Treaty  of 
Utrecht,  82;  interference  in  affairs 
of,  92;  relations  of,  to  Great  Pow- 
ers, 98;  attitude  of  Congress  of 
Verona  as  to,  99;  convention  of, 
as  to  the  Suez  Canal,  120;  juris- 
diction of,  as  to  foreign-born  sub- 
jects, 132;  termination  of  treaty 
of,  with  United  States,  217,  218; 
vessels  of,  during  war  with  the 
United  States,  227,  254;  attitude  of, 
as  to  Declaration  of  Paris,  256,  266, 
314. 

Spheres  of  influence,  theory  of,  100, 
113,  114. 

Spies,  status  of,  243,  275. 

Sponsions,  defined,  205,  279. 

State  officers,  exemptions  of,  144- 
146. 

State  papers,  as  a  source  of  interna- 
tional law,  39-42. 

Statute  of  limitations,  law  of,  as  to 
debts  in  time  of  war,  284. 

Steamers,  status  of,  in  war,  248. 

Stock,  held  by  enemy  in  public  debt, 
250. 

Straits,  jurisdiction  of,  118. 

Stratagems,  use  of,  264. 

Suarez,  writer,  31,  41. 

Submarine  cables,  convention  for 
the  protection  of,  256,  259;  censor- 
ship of,  323.      See  Telegraph. 

Suez  Canal.     See  Canals. 

Sulphur,  as  contraband  of  war,  317. 

Supplies  of  war,  not  to  be  furnished 
by  neutral  to  belligerent,  304;  ships 
carrying,  319-321  et  seq.  See  Muni- 
tions of  War. 


INDEX 


503 


Supreme  Court  of  the  United  States, 
38,  41,  117. 

Suspension  of  treaties,  238. 

Suzerainty,  instances  of,  58-60. 

Sweden,  dissolution  of,  from  Norway, 
49;  relations  of,  to  Great  Powers, 
98;  sale  of  territory  by,  to  France, 
111;  jurisdiction  of,  over  foreign- 
bom  subjects,  131,  132;  treaty  of, 
as  to  contraband,  321. 

Switzerland,  neutralization  of,  22,  58, 
288;  jurisdiction  of,  over  foreign- 
bom  subjects,  131,  132. 

Taxes,  lien  of  state  for,  108;  upon 
property  of  diplomatic  agent,  186; 
of  enemy  subjects,  249;  collection 
of,  by  an  occupying  state,  249,  250, 
271. 

Telegraph,  status  of,  in  war,  248; 
cables,  323 ;  submarine  and  wireless, 
256-259. 

Telephone,  status  of,  in  war,  248. 

Terceira  expedition,  what  it  was,  297, 
298. 

Termination  of  treaties,  217-219; 
of  war,  281-284. 

Territorial  waters.  See  Three-mile 
Limit. 

Territory,  acquisition  of,  108-112; 
cession  of,  jurisdiction  over,  110; 
formed  by  alluvium,  112;  as  deter- 
mined by  rivers  and  lakes,  etc.,  114 
et  seq.;  annexation  of,  134. 

Three-mile  limit,  jurisdiction  as  to, 
121,  122,  128,  129,  296. 

Transfer  of  territory,  110,  111;  of  alle- 
giance, 133  et  seq.;  of  enemy  vessel 
to  neutral  flag,  255. 

Transport,  ships  of,  324. 

Transvaal,  war  of,  with  Great  Brit- 
ain, 234. 

Treaties,  as  a  source  of  international 
law,  39,  40;  intervention,  because 
of,  90;  of  United  States  as  to  Ca- 
nadian fisheries,  123-125;  of  extra- 
dition, 148;  definition  of,  203;  other 
forms,  203  et  seq.;  negotiation  of, 
206-213;  validity  of,  213;  classifi- 


cation of,  214,  215;  of  London,  1831, 
1839,  214;  interpretation  of,  215- 
217;  termination  of,  217-219;  de- 
nunciation of,  218;  abrogation  or 
suspension  of,  238;  of  peace,  282- 
284;  as  to  canals,  289;  as  to  free 
vessels  making  free  goods,  311- 
315. 

Treaty  of  Berlin,  suzerainties  estab- 
lished by,  60;  relations  of,  to  Great 
Powers,  100;  provision  of,  as  to  a 
portion  of  Bessarabia,  110;  closing 
ports,  126;  servitudes,  152;  Kongo, 
288. 

Treaty  of  Paris,  relations  of,  to  Great 
Powers,  100;  provision  of,  as  to 
Bessarabia,  110;  provision  of,  as 
to  Bosphorus,  etc.,  119;  relations  of, 
to  Ottoman  Empire,  214;  provi- 
sions of,  as  to  privateering,  neutral 
goods,  enemy's  goods,  and  block- 
ade, 256,  266. 

Trent,  case  of,  323. 

Tribunal,  none,  of  international  law, 
11. 

Triple  Alliance,  natioiLS  parties  to,  101. 

Tripoli,  treaty  of,  with  the  United 
States  as  to  settlement  of  disputes, 
30. 

Troops,  internment  of  belligerent, 
274,  295,  296,  299;  enlistment  of, 
for  belligerent  service,  305. 

Troppau,  Congress  of,  99. 

Truce.     See  Flags  of  Truce. 

Turkey,  recognition  of,  48;  suzerainty 
of,  60;  application  of  balance  of 
power  to,  91;  policy  as  to  territory 
of,  100;  portion  of,  ceded  to  Rou- 
mania,  110;  treaty  of,  with  Russia 
as  to  Bosphorus,  etc.,  119;  conven- 
tion of,  as  to  Suez  Canal,  119,  120; 
letters  of  minister  lo,  169. 

Twiss,  Travers,  writer,  34. 

Ulpian,  writer,  7. 

Uniform  of  enemy,  use  of,  263. 

United  States,  influence  on  interna- 
tional law,  27-31;  agrees  to  the 
Treaty  of  Paris,  40;  diplomatic  pa- 


504 


INDEX 


pers  of,  42;  recognition  of  other 
countries  by,  47  et  seq.;  suzerainty 
of,  over  Indians,  60;  intervention 
of,  in  case  of  Venezuela,  84;  Cuba, 
92;  attitude  of,  as  to  the  Monroe 
Doctrine,  101;  extinguishment  of 
Indian  title  by,  109;  cession  of 
"Horse-shoe  Reef"  to,  by  Great 
Britain,  110;  sale  of  Alaska,  Louis- 
iana, and  the  Philippines  to,  111; 
territory  of,  formed  by  alluvium, 
112;  claim  of,  to  jurisdiction  over 
Chesapeake  and  Delaware  bays, 
117;  attitude  of,  as  to  sound  dues, 
118;  Dardanelles,  119;  Bering  Sea, 
122-125;  jurisdiction  of,  over  for- 
eign-born subjects,  131-133;  as  to 
marriage,  133;  laws  of,  as  to  nat- 
uralization, 133-138;  attitude  of, 
as  to  Koszta,  136,  137;  jurisdiction 
of,  over  aliens,  138-141;  courts  of 
consuls  of,  146-148;  attitude  of, 
as  to  diplomatic  agents,  180  et  seq.; 
diplomatic  practice  of,  187-189; 
French  language  used  in  treaties 
of,  209;  making  and  ratification  of 
treaties  of,  209-213;  termination  of 
treaty  of,  with  Spain,  217,  218;  atti- 
tude of,  as  to  embargo  of  1807,  227; 
vessels  of,  during  war  with  Spain, 
227;  attitude  of,  as  to  blockade  of 
Crete,  228,  229 ;  Spanish  vessels  dur- 
ing war  with  Spain,  254;  Declara- 
tion of  Paris  during  war  with  Spain, 
256,  266,  314;  volunteer  navy  of, 
267;  destruction  of  vessels  by,  in 
"War  of  1812,  270;  attitude  of,  as 
to  ransom,  268;  salvage,  272;  prac- 
tice of,  as  to  exchange  of  prisoners, 
274;  guaranty  by,  of  neutrality  of 
trans-isthmian  canal,  289;  neutral- 
ity laws  of,  292,  306;  attitude  of,  as 
to  Alabama  case,  307 ;  treaties  of,  as 
to  free  ships  making  free  goods,  313 
et  seq.;  articles  enumerated  by,  as 
contraband  of  war,  316  et  seq.; 
attitude  of,  as  to  convoy,  329; 
blockade,  330  et  seq.;  continuous 
voyages,  339,  340;  practice  of,  as  to 


prize  courts,  342  et  seq.;  repeal  by, 
of  law  as  to  prize  money,  344. 

Unneutral  service,  what  it  is,  321- 
325. 

Uti  possidetis,  doctrine  of,  284. 

Utrecht,  Peace  of,  as  an  epoch  in  in- 
ternational law,  20,  82,  209. 

Vattel,  writer,  33,  91,  93,  148,  173, 
215,  235,  291. 

Venezuela,  boundary  line  of,  84; 
blockade  of  ports  of,  85,  229;  money 
claims  against,  85. 

Verona,  Congress  of,  83,  99. 

Vessels,  classes  of,  125,  126;  national- 
ity of,  how  determined,  126;  juris- 
diction over,  126-129;  status  of,  at 
sea,  253  et  seq.;  in  port  at  outbreak 
of  hostilities,  254;  voluntary  and 
auxiliary  navy,  266-268;  capture 
and  ransom  of,  268-271;  postli- 
minium, 271,  272;  cartel,  276;  in 
case  of  neutral  relations  between 
states  and  individuals,  311-345; 
visit  and  search  of,  325-329.  See 
Privateering,  Right  of  Asylum. 

Victoria,  Queen,  neutrality  proclama- 
tion of,  66. 

Victoria,  writer,  31,  41. 

Vienna,  Congress  of,  settling  of  court 
precedence  by,  98;  determination 
of  rank  of  state  agents  by,  162  et 
seq.;  language  used  in,  210;  as  to 
neutralization,  288. 

Visit  and  search,  right  of,  325-329; 
object  of,  325-326;  method  of,  326 
et  seq.;  seizure  in  case  of,  326-329; 
exemption,  327,  328;  destruction  of 
prize,  270. 

Volunteer  and  auxiliary  navy  of, 
Prussia,  266,  267;  Greece,  267;  Rus- 
sia, 267;  Great  Britain,  267;  United 
States,  267. 

War,  definition  of,  233;  commence- 
ment of,  233-235;  declaration  of, 
235,  236;  object  of,  236-238;  gen- 
eral effects  of,  238,  239 ;  persons 
affected   by,    241;   combatants   in. 


INDEX 


505 


241-243;  noncombatants  in,  243- 
245;  public  property  of  the  enemy 
in,  247,  248;  real  property  of  enemy 
subjects  in,  248;  personal  property 
of  enemy  subjects  in,  249-251 ;  ves- 
sels, 253-255;  goods,  255,  256;  sub- 
marine telegraphic  cables,  256- 
259;  belligerent  occupation  during, 
261-263;  forbidden  methods  in, 
263-265;  privateers  in,  265,  266; 
voluntary  and  auxiliary  navy  in, 
266-268;  capture  and  ransom  in, 
268-271 ;  postliminium  in,  271,  272; 
prisoners  and  their  treatment  in, 
273-275;  non-hostile  relations  of 
belligerents  in,  275-279;  methods 
of  termination  of,  281-284. 
Warlike  expedition,  what  is  a,  298. 


Washington,    President,    attitude   of, 

as  to  neutrality,  292. 
Waters,  as  affecting  jurisdiction,  114, 

115. 
Westphalia,  Peace  of.      See  Peace  of 

Westphalia . 
Wharton,  writer,  34. 
Wheaton,  writer,  34,  114,  148. 
Wicquefort,  173. 

Wireless  telegraph.     See  Telegraph. 
Wisby,  laws  of.     iSec  Sea  Laws. 
Wolff,  writer,  33. 
Women,  nationality  of,  133. 
Woolsey,  writer,  93. 
Works  of  art,  exemption  of,  248,  255 

256. 

Zouch,  writer,  8,  32. 


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